Capanna v. Travelers Ins. Co.

• Decision Date: 24 July 1986
• Citation: 355 Pa.Super. 219,513 A.2d 397
• Parties: Janet CAPANNA, Administratrix of the Estate of John Capanna, Deceased; and Janet Capanna, Individually, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Pennsylvania Superior Court

Page 397

513 A.2d 397

355 Pa.Super. 219

Janet CAPANNA, Administratrix of the Estate of John Capanna Deceased; and Janet Capanna, Individually, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

Superior Court of Pennsylvania.

Argued April 7, 1986.

Filed July 24, 1986.

[355 Pa.Super. 221] Richard A. Lefchak, Philadelphia, for appellant.

David M. McCormick, Philadelphia, for appellee.

Before CIRILLO, P.J., and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

MONTEMURO, Judge.

On October 22, 1980, appellant's husband/decedent, John Capanna, died as a result of injuries suffered when the uninsured automobile which he owned and was operating on that day collided with another vehicle parked along the side of Interstate 95. On May 25, 1983, appellant submitted an application for basic loss benefits to the assigned claims bureau pursuant to the Pennsylvania Assigned Claims Plan (PACP). ¹ Appellee, although assigned to process appellant's claims, has nevertheless refused to pay the claimed benefits.

On April 9, 1984, appellant filed a complaint in assumpsit setting forth three counts. The first count sought basic loss benefits in the nature of work loss benefits, medical expenses, and funeral expenses on behalf of the estate of appellant's decedent. The second count similarly sought work loss benefits, medical expenses, and funeral expenses yet alternatively on behalf of appellant as a "survivor". 40 P.S. § 1009.103. The third count sought "survivor's loss" benefits, id., on appellant's own behalf. On April 24, 1984 Thereafter, in response to appellee's June 25, 1984 motion for judgment on the pleadings with respect to appellant's third count, Judge DiBona dismissed that count by an order dated August 9, 1984. On September 7, 1984, appellant filed the following notice of appeal:

                appellee filed preliminary objections to appellant's Counts I and II in the nature of a demurrer.  By an order and opinion dated June 13, 1984, the Honorable Alfred J. DiBona, Jr., dismissed the first count in so far as it sought work loss benefits and dismissed the second count in toto.   No appeal was taken
                

NOTICE OF APPEAL

Notice is given that Janet Capanna, Administratrix of the Estate of John Capanna, Deceased; and Janet Capanna, individually, plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the final Order entered in this matter on August 9, 1984. Further, notice is given that plaintiff hereby appeals to the said Court from the interlocutory Order entered in this matter on June 13, 1984. (emphasis supplied).

Initially, we note that it is incumbent upon this court to consider the propriety of each appeal. See Indiana County Hospital Authority v. McCarl's Plumbing & Heating Company, 344 Pa.Super. 226, 496 A.2d 767 (1985). The appealability of an order may be raised sua sponte. Id.

In Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985), Judge Wieand cogently instructed as follows:

An appeal will lie only from a final order unless otherwise permitted by statute. 'A final order is usually one which ends the litigation or, alternatively, disposes of the entire case ... "Conversely, an order is interlocutory and not final unless it effectively puts the litigant 'out of court.' " ' Praisner v. Stocker, 313 Pa.Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa. C.S. § 742. '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. This is so because in most such instances 'the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.' Id. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is 'out of court' with respect thereto. Id. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id. at 341, 459 A.2d at 1260.

Id. at 80-81, 500 A.2d at 166-67. The question instantly before us is whether Judge DiBona's June 13, 1984 order was "interlocutory", as described in appellant's notice of appeal, or whether in fact that order was final and appealable. If the June 13, 1984 order was final, then appellant's delay of nearly three months renders the appeal ultimately taken untimely as to that order. See Praisner v. Stocker, 313 Pa.Super. 332, 341 n. 3, 459 A.2d 1255, 1260 n. 3 (1983).

More specifically, the issue to be resolved is whether the June 13, 1984 order precluded appellant from pursuing "separate and distinct causes of action". See Cloverleaf Development, Inc. v. Horizon Financial F.A., supra, 347 Pa.Super. at 81, 500 A.2d at 166. We find that it did.

The June 13, 1984 order effectively foreclosed both of appellant's claims to work loss benefits; namely on behalf of her decedent's estate and on her own behalf. The August 9, 1984 order foreclosed appellant's discrete claim to survivor's loss benefits. In his opinion announcing the judgment of the court in Smiley v. Ohio Casualty Insurance Company, 309 Pa.Super. 247, 455 A.2d 142 (1983), our former colleague Judge Robert Van der Voort (since retired) observed:

A work loss benefit is not a form of survivor's benefit, but is in the nature of reimbursement to the estate of the deceased for income he or she would probably have earned but for the accident. 40 P.S. § 1009.103.

Survivor's benefits, by way of distinction, are what a survivor might reasonably have expected to receive from the victim in money or services, had the victim not sustained the fatal injury. 40 P.S. § 1009.103.

Each is a separate type of benefit, the work loss benefit intended to reimburse the estate of the victim for lost earnings, and survivor's benefits to reimburse surviving family members for what they would have received had the victim lived. Both may be claimed in a single action. A work loss claim is comparable to a survival action and a survivor's claim is comparable to a wrongful death action. These conclusions were fully developed in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 190, 401 A.2d 1160 (1979), affirmed, 491 Pa. 447, 421 A.2d 629, 636 (1980), and further reaffirmed and clarified in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982). Freeze has been followed in Winegart v. State Farm Mutual Auto Insurance Co., 302 Pa.Super. 524, 449 A.2d 40 (1982), and Reynolds v. Nationwide Mutual Insurance Co., 303 Pa.Super. 31, 449 A.2d 62 (1982); Hartleb v. The Ohio Casualty Insurance Company, 305 Pa.Super. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Company, 304 Pa.Super. 43, 450 A.2d 91 (1982).

Id. at 252, 455 A.2d at 145 (emphasis supplied). In so far as work loss benefits and survivor's loss benefits are clearly separate and distinct in nature, we are of the opinion that claims to these respective benefits must also be viewed as separate and distinct.

We are bolstered in this resolve by the ready comparisons, employed by Judge Van der Voort above, between work loss claims and survival actions and between survivor's loss claims and wrongful death actions. See also Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982); Midboe v. State Farm Mutual Automobile Insurance Company, 495 Pa. 348, 433 A.2d 1342 (1981); Krock v. Chroust, 330 Pa.Super. 108, 478 A.2d 1376 (1984); Daniels v. State Farm Mutual Automobile Insurance Company, 283 Pa.Super. 336, 423 A.2d 1284 (1980); 42 Pa. C.S. §§ 8301, 8302. In Gallick v. United States, 542 F.Supp. 188 (M.D.Pa.1982), the district court, interpreting Pennsylvania law, observed "Although the survival and wrongful death statutes confer a right to recover damages growing out of a single incident ... nevertheless, the rights of action are separate and distinct, and cumulative not alternate." Id. at 190 (emphasis supplied). See also Martin v. Swift, 258 F.2d 797 (3d Cir.1958); Schwab v. P.J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956).

Accordingly, on their faces and by analogy, the work loss claims presented by appellant's first and second counts were separate and distinct from the survivor's loss claim presented by the third count. The June 13, 1984 order in effect put appellant "out of court" with respect to the pertinent claims dismissed thereby and, therefore, that order was in fact final and appealable. To the extent that the instant appeal addresses the June 13, 1984 dismissals, we find that appellant has failed to perfect her appellate rights.

Appellant's appeal from the August 9, 1984 dismissal of her third count, claiming survivor's loss benefits, is properly before us. As recently reiterated, we note the following standard of review:

In reviewing an order granting a motion for judgment on the pleadings, we 'accept as true the opposing party's well-pleaded averments of fact and consider against him only those facts which he specifically admits.' Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981). In ascertaining the facts, we must examine only the pleadings and the documents properly attached thereto....