Niemiec v. Allstate Insurance

721 A.2d 807, 1998 Pa. Super. LEXIS 3808
CourtSuperior Court of Pennsylvania
DecidedDecember 2, 1998
Docket1329
StatusPublished
Cited by14 cases

This text of 721 A.2d 807 (Niemiec v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Niemiec v. Allstate Insurance, 721 A.2d 807, 1998 Pa. Super. LEXIS 3808 (Pa. Ct. App. 1998).

Opinions

MONTEMURO, J.:

This is an appeal from the April 2, 1998 Order of the Philadelphia Court of Common Pleas sustaining the preliminary objections of Appellee, Allstate Insurance Company, dismissing with prejudice Appellants’ class action allegations, and referring to arbitration Appellants’ individual claim against Appellee. For the reasons set forth below, we must quash this appeal.

Appellants, Thomas and Carole Niemiee, filed this declaratory judgment action to protest a retroactive premium adjustment charged to their account by Appellee following a settlement in federal court regarding the level of uninsured/underinsured motorist coverage provided under their insurance policy. The instant complaint consists of two counts: Count One is an individual claim by Appellants asserting allegations of bad faith and fraud against Appellee arising from its imposition of the retroactive premium adjustment; Count Two raises the same causes of action, but does so through class action allegations against both Appellee and a purported defendant-class of insurance companies. Appellee filed preliminary objections in the nature of a demurrer and challenged Appellants’ standing and capacity to sue with regard to the class action allegations contained in Count Two. As to Appellants’ individual claims asserted in Count One, Appellee objected on the basis of improper venue and lack of subject matter jurisdiction, arguing that because the amount in controversy is significantly less than $50,000.00,1 the claims in Count One should be referred to compulsory arbitration.

After a hearing, the trial court entered an Order sustaining Appellee’s preliminary objections, dismissing with prejudice Count Two of Appellants’ complaint, and referring to arbitration the claims contained in Count One. Appellants filed this timely appeal raising four issues for our review:

I. Were the class action allegations legally sufficient?
II. Did the lower court err in determining that the Amended Complaint did not aver “typicality”?
III. Was a class of defendants appropriate in this case?
IV. Did the lower court err in referring this cause of action to arbitration?

(Appellants’ Brief at iv).

We are unable to reach the merits of these issues. This matter involves a single complaint containing two counts, each of which is disposed of by the trial court in a different manner. After a thorough review, we are constrained to quash this appeal as interlocutory.

It is well settled that as a general rule an appeal will lie only from a final order. State Farm Fire and Casualty Co. v. Craley, 450 Pa.Super. 205, 675 A.2d 732, 733-34 (Pa.Super.1996). The law is clear that an order that has the effect of directing the parties to arbitrate a matter is interlocutory and not appealable. Campbell v. Fitzgerald Motors, Inc., 707 A.2d 1167, 1168 (Pa.Super.1998). This is so because an order compelling arbitration ‘“forces the parties into, rather than out of, court.’ ” State Farm, 675 A.2d at 734 (quoting Maleski v. Mutual Fire Ins., 534 Pa. 575, 578, 633 A.2d 1143, 1145 (1993)). Therefore, that portion of the trial court’s Order which refers Count One to arbitration is not final and appealable.

Similarly, the trial court’s dismissal with prejudice of Count Two is also not properly before this Court. Pursuant to Rule of Civil Procedure 1705, Appellee filed preliminary objections in the nature of a demurrer to Count Two of Appellants’ complaint, attacking the underlying merits of the class action claims. In its Order, the trial court sustained Appellee’s preliminary objections and dismissed with prejudice Count Two of the complaint.

[809]*809The 1992 amendments to Pennsylvania Rule of Appellate Procedure 841 make clear that an order is not final and appealable unless it “disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1). Prior to the amendments, an order was considered final if it had the practical effect of putting a litigant out of court; thus the finality of an order was determined often without regard to whether the litigation was terminated as to all claims and all parties. Robert H. McKinney, Jr., Associates, Inc. v. Albright, 429 Pa.Super. 440, 632 A.2d 937, 938 (Pa.Super.1993). See Lee v. Child Care Service, 461 Pa. 641, 645-46 n. 1, 337 A.2d 586, 588 n. 1 (“An order sustaining preliminary objections and dismissing the class aspects of [an] action is a final order even though individual aspects of the action may survive the order. The order effectively puts out of court those members of the class not parties to the individual action.”). However, effective July 6, 1992, Rule 341

dispenses with this case-by-case analysis, permitting a tidal court to enter a final order “as to one or more but less than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire ease.”

Matukonis v. Trainer, 441 Pa.Super. 570, 657 A.2d 1314, 1315 (quoting Pa.R.A.P. 341(c)(emphasis supplied)).

“Concisely stated, our Supreme Court has clarified the interlocutory nature of orders dismissing less than all claims or parties: an appeal may not be taken from such orders.” Id. Accordingly, “[f]or finality to occur, the trial court must dismiss with prejudice the complaint in full.” Mier v. Stewart, 453 Pa.Super. 314, 683 A.2d 930, 930 (Pa.Super.1996). Our research has failed to uncover any caveat to this rule which would provide an exception for cases such as this involving the dismissal of a single class action count contained in a mul-ti-count complaint. The trial court’s Order dismisses only one count of the complaint and fails to dismiss with prejudice the complaint as a whole or otherwise dispose of all claims and all parties. The interlocutory nature of this order, combined with the lack of certification from the trial court pursuant to Rule 341(e), renders this appeal premature.

Finally, we examine Appellants’ erroneous contention that this appeal is proper pursuant to DiLucido v. Terminix, 450 Pa.Super. 393, 676 A.2d 1237 (Pa.Super.), appeal denied, 546 Pa. 655, 684 A.2d 557 (1996). DiLucido addresses the appealability of an order denying a request for class certification. A panel of this Court held that an order denying a request for class certification may be appealable as a collateral order under Pa.R.A.P. 313.

A collateral order is one which is

separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313(b).

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Niemiec v. Allstate Insurance
721 A.2d 807 (Superior Court of Pennsylvania, 1998)

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Bluebook (online)
721 A.2d 807, 1998 Pa. Super. LEXIS 3808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niemiec-v-allstate-insurance-pasuperct-1998.