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

583 A.2d 1193, 400 Pa. Super. 432, 1990 Pa. Super. LEXIS 3402
CourtSupreme Court of Pennsylvania
DecidedDecember 14, 1990
Docket01257
StatusPublished
Cited by27 cases

This text of 583 A.2d 1193 (Trackers Raceway, Inc. v. Comstock Agency, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trackers Raceway, Inc. v. Comstock Agency, Inc., 583 A.2d 1193, 400 Pa. Super. 432, 1990 Pa. Super. LEXIS 3402 (Pa. 1990).

Opinions

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.

[435]*435The 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 [436]*436paragraphs 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 [437]*437four 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 techni[438]*438cal 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,

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Trackers Raceway, Inc. v. Comstock Agency, Inc.
583 A.2d 1193 (Supreme Court of Pennsylvania, 1990)

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Bluebook (online)
583 A.2d 1193, 400 Pa. Super. 432, 1990 Pa. Super. LEXIS 3402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trackers-raceway-inc-v-comstock-agency-inc-pa-1990.