Bash v. Bell Telephone Co. of Pennsylvania

• Decision Date: 09 January 1992
• Parties: Richard N. BASH, D.D.S., Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Penn Del Directory and Gail Markowski.
• Court: Pennsylvania Superior Court

Page 825

601 A.2d 825

411 Pa.Super. 347

Richard N. BASH, D.D.S., Appellant, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Penn Del Directory and Gail Markowski.

Superior Court of Pennsylvania.

Argued Nov. 21, 1991.

Filed Jan. 9, 1992.

David C. Burghen, Doylestown, for appellant.

Nancy Gellman, Philadelphia, for appellees.

Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from an order sustaining appellees' preliminary objections, which dismissed appellant's complaints against two parties, Penn Del Directory (Penn Del) and Gail Markowski, ¹ and dismissed with prejudice three of his four counts against Bell Telephone Company of Pennsylvania (Bell). On appeal, appellant contends that the trial court improperly sustained appellees' preliminary objections in the nature of a demurrer. For the following reasons, we quash appellant's appeal as to the dismissal of his count for punitive damages, and affirm the trial court's order sustaining appellees' preliminary objections with respect to the complaint against Penn Del and the other counts against Bell.

On May 13, 1990, appellant entered into a written agreement, allegedly with Bell and Penn Del, for yellow pages directory advertising. On September 25, 1990, appellant learned that the advertisements had not been published. As a result, appellant filed a complaint against Bell, Penn Del and sales representative Gail Markowski on October 26, 1990, in the Court of Common Pleas of Bucks County. In his complaint, appellant stated four counts against the three defendants: (1) breach of contract; (2) negligence; (3) punitive damages; and (4) violation of the Unfair Trade Practices Act, 73 Pa.S.A. § 201-1, et seq. On November 21, 1990, all defendants filed preliminary objections in the nature of a demurrer. Bell's preliminary objections challenged counts two through four of appellant's complaint, as well as the language in count two which pleaded damages for emotional distress. Penn Del and Markowski incorporated by reference the preliminary objections of Bell, and additionally demurred on the grounds that Penn Del and Markowski could not be liable to appellant because Bell was their disclosed principal. On December 17, 1990, appellant stipulated to the dismissal with prejudice of counts I, III and IV, as to defendant Markowski. The trial court subsequently entered an order dated January 30, 1991, sustaining the preliminary objections of Markowski and Penn Del, and sustaining Bell's preliminary objections as to "all counts of Plaintiff pertaining to actions in reference to negligence." Order, January 30, 1991. The court further directed that "Plaintiff's Complaint shall be restricted to a cause of action based upon the express written contract between the parties." Id. This timely appeal followed.

I.

Before we can reach the issue of whether the trial court properly sustained the preliminary objections of appellees Penn Del and Bell, we must first address the issue of whether the court's order is immediately appealable. ² It is well settled that only a final order is appealable, unless otherwise provided by statute. Praisner v. Stocker, 313 Pa.Super. 332, 336, 459 A.2d 1255, 1258 (1983) (citations omitted). "In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications.... A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court." Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981) (citations omitted).

In view of these principles, it is immediately apparent that the order is appealable with respect to dismissal of the complaint against Penn Del. "[T]he dismissal of a complaint as to one of several defendants is a final and appealable order." Motheral v. Burkhart, 400 Pa.Super. 408, 415, 583 A.2d 1180, 1184 (1990) (citing United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985)). However, the appealability of the order dismissing three of appellant's four counts against Bell is not as clear.

"As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable." Praisner v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. However, the Praisner court enunciated an exception to this rule when it held that if the causes of action are separate and distinct, dismissal of some but not all claims is immediately appealable. Id., 313 Pa. Superior Ct. at 341, 459 A.2d at 1260.

Subsequent decisions have clarified this exception through application. Most recently, an en banc panel of this court examined whether an action for professional negligence for failing to administer amniocentesis was separate and distinct from one alleging professional negligence for failure to obtain informed consent. In Jenkins v. Hospital of Medical College of Pennsylvania, 401 Pa.Super. 604, 585 A.2d 1091 (1991), the court stated that in determining whether a plaintiff has been "put out of court" when a particular claim is dismissed, "we look to see whether the claims that have been dismissed and those that remain 'request different relief for different harms.' " Id., 401 Pa. Superior Ct. at 611-12, 585 A.2d at 1094 (quoting Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122, 573 A.2d 1116, 1118 (1990)).

In Cloverleaf Development, Inc. v. Horizon Financial, 347 Pa.Super. 75, 500 A.2d 163 (1985), this court decided an issue closely analogous to the instant one. In Cloverleaf, the trial court dismissed all counts of a complaint except for a breach of contract count. The remaining claims were counts for wrongful interference with prospective contractual relations and intentional infliction of emotional distress, as well as a separate count for punitive damages. The court distinguished claims that are separate and distinct "from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action." Id., at 347 Pa. Superior Ct. 81, 500 A.2d at 167 (emphasis added).

First, the court followed Praisner, supra, in holding that "where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action of breach of contract does the measure of damages become relevant." Id. (quoting Praisner, supra, 313 Pa.Super. at 341, 459 A.2d at 1260). Next, the court concluded that the appellants were out of court as to their wrongful interference and intentional infliction claims because these claims were separate causes of action. Thus, their dismissal was immediately appealable.

In the instant case, appellant's claim for punitive damages in count III is not final and appealable because, as in Cloverleaf, the contract action remains unresolved. Thus, we quash appellant's appeal with respect to this claim.

Count II, the claim for negligence, and count IV, the claim for violation of the Unfair Trade Practices Act, however, are both separate and distinct from the breach of contract claim. While the contract action simply states a failure to conform to the terms of the written contract, and seeks lost profits and alternative advertising costs, the negligence claim alleges a failure to act in accordance with the skill reasonably expected of a similarly situated advertising specialist, and seeks damages for physical pain and mental anguish. Because the negligence claim alleges harm and seeks relief entirely different from that pleaded in the breach of contract claim, the negligence claim is separate and distinct. Thus, the order dismissing it is a final, appealable order.

Similarly, appellant's claim under the Unfair Trade Practices Act is also separate and distinct from the breach of contract claim. In this claim, appellant alleges that appellees "falsely represented to Plaintiff that its advertisement services and products would be provided in a workmenlike [sic] manner and be of a reasonable quality." He seeks, inter alia, treble damages and compensation for the diminished fair market value of his business. This is a separate statutory claim, and as such, is not an alternative way of stating his breach of contract claim. Thus, its dismissal is immediately appealable. See Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 213, 529 A.2d 471, 475 (1987) (claim under Unfair Trade Practices and Consumer Protection Law held separate from action in assumpsit for violation of agreement).

II.

We may now turn to the issue of whether the trial court properly sustained appellees' preliminary objections in the nature of a demurrer, dismissing appellant's complaint against Penn Del, and counts II and IV against Bell. Our scope of review of an order sustaining preliminary objections in the nature of a demurrer is well-settled:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.

Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of...