Fink v. Delaware Valley HMO

Citation612 A.2d 485,417 Pa.Super. 287
PartiesHarriet Marie FINK, Appellant, v. DELAWARE VALLEY HMO.
Decision Date13 July 1992
CourtSuperior Court of Pennsylvania

Mary A. Knight, Philadelphia, for appellant.

Richard H. Martin, Philadelphia, for appellee.



This is an appeal from an order granting appellee Delaware Valley HMO's (DVHMO's) preliminary objections and dismissing Counts II through XI of appellant Harriet Marie Fink's complaint. Appellant presents the following issue for our review:

Whether the learned trial judge erred in holding 5 U.S.C. § 8901 et. seq. preempts plaintiff's state common law tort claims?

Appellant's Brief at 5. 1 For the following reasons, we quash appellant's appeal as to the dismissal of her counts for interference with contractual relations and punitive damages and affirm as to the remainder of claims.

The instant action arose as a result of appellant's efforts to find a surgeon to operate on her injured shoulder, and appellee's unwillingness to approve the surgery under appellant's medical plan. Appellant filed an eleven-count complaint on December 31, 1990 advancing the following causes of action: (1) breach of contract, (2) intentional infliction of emotional distress, (3) negligence, (4) fraudulent misrepresentation, (5) common law deceit, (6) tortious interference with prospective contractual relations, (7) tortious interference with contractual relations, (8) violation of the Unfair Insurance Practices Act, 40 40 P.S. § 1171.5(a)(10), (9) violation of the Unfair Insurance Practices Act: Bad Faith, 42 Pa.C.S.A. § 8371, (10) medical malpractice, and (11) a claim for punitive damages. Thereafter, appellee filed preliminary objections to appellant's complaint. In its order of September 3, 1991, the trial court sustained the majority of appellee's preliminary objections and dismissed ten of the eleven counts of the complaint, retaining only appellant's contract cause of action. This timely appeal followed.


Before considering the merits of appellant's issues, we must first determine whether the order of the trial court was final and appealable. 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).

"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 A.2d at 1258. However, this court has recognized that "if the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable." Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). Thus, a pivotal factor to consider in determining whether an order is final is whether the order has put the aggrieved plaintiff out of court on all theories of recovery asserted against a given defendant for a given loss. Id. (citing Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987)).

In Cloverleaf Development v. Horizon Financial, 347 Pa.Super. 75, 82, 500 A.2d 163, 167 (1985), this court held that dismissal of a claim for damages allegedly caused by wrongful interference with negotiations with a third party was final and appealable although a claim for breach of contract remained. We further found that a count averring intentional infliction of emotional distress constituted a cause of action separate from breach of contract. Id. at 85, 500 A.2d at 168. Accordingly, we find that appellant's counts raising tortious interference with prospective contractual relations and intentional infliction of emotional distress are separate and distinct from the count for breach of contract.

Similarly, in Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 529 A.2d 471 (1987), we held that where a claim of breach of agreement to provide insurance remained, the order was not final insofar as it dismissed a claim for "negligent breach of contract" but was final insofar as it dismissed claims of misrepresentation, fraud, and deceit and claims based on alleged violations of Unfair Insurance Practices Act and/or UTPCPL. See also Drohan v. Sorbus, 401 Pa.Super. 29, 35, 584 A.2d 964, 966 (1990) (the fact that the claims are based upon statutory law indicate that they are separate and distinct from the nonstatutory breach of contract claim); Gabriel v. O'Hara, 368 Pa.Super. 383, 388, 534 A.2d 488, 490-91 (1987) (denial of petition to amend complaint to include a claim under Unfair Trade Practices and Consumer Protection Law is appealable order because although claims for fraud and breach of contract remained, plaintiffs would be precluded from seeking recovery of damages and attorney's fees to which they may be entitled under the UTPCPL). Thus, we find that appellant's counts for fraudulent misrepresentation, common law deceit, and violation of the Unfair Insurance Practices Act are separate and distinct causes of action.

This court recently addressed the issue of appealability where a separate count for punitive damages was dismissed and the only remaining count asserted breach of contract. In Bash v. Bell Telephone, 411 Pa.Super. 347, 601 A.2d 825 (1992), we determined that a claim for punitive damages was not final and appealable because the contract action remained unresolved. We reasoned 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 appellant is successful in his cause of action of breach of contract does the measure of damages become relevant.' " Id. at 352-53, 601 A.2d at 828 (citations omitted). Thus, to the extent the order dismissed the claim for punitive damages, it is not appealable.

We must now analyze the counts asserting general negligence, medical malpractice, and tortious interference with contractual relations. Preliminarily, we note that Count I, the only count that was not dismissed, states a cause of action for breach of contract, asserting that DVHMO failed to perform its obligation under the contract for health benefits by refusing to pay for the cost of appellant's surgery. As a result, appellant seeks payment of all medical bills, special damages in the amount of $100,000.00 for her bodily harm, wage loss, disfigurement and emotional distress, cost of suit, and other relief deemed just and proper. Count III alleges general negligence on the part of appellee resulting in pain and suffering, mental anguish and other injuries for which appellee seeks an amount in excess of twenty thousand dollars ($20,000.00). The alleged negligence consisted of

(a) failing to provide Harriet Fink full complete information as to correct doctors, hospitals and options for treatment;

(b) refusing and continuing to refuse to pay for plaintiff's medical bills as listed above;

(c) negligently withholding needed medical services from Harriet Fink;

(d) negligently inflicting severe emotional distress and bodily harm to Harriet Fink, including, but not limited to anxiety, sleeplessness, loss of weight, loss of appetite, headaches, severe depression, nausea, cosmetic deformity and a severe loss of quality of her life;

(e) negligently depriving plaintiff of her right to choose between two medically accepted procedures for the treatment of her separated AC-joint;

(f) permitting its employees, who are not medical doctors, to override the recommendations of four physicians;

(g) negligently processing Harriet Fink's application for medical benefits;

(h) conspiring to force Harriet Fink to live with a shoulder deformity.

Complaint at 12.

In determining whether appellant's breach of contract and general negligence claims state separate and distinct causes of action, we note that this court has adopted the following test for determining whether a breach of contract gives rise to an actionable tort:

The test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contractual obligation (misfeasance) rather than the mere failure to perform (nonfeasance).

Raab v. Keystone Ins. Co., 271 Pa.Super. 185, 187-88, 412 A.2d 638, 639 (1980) (citations omitted).

In the instant matter, we recognize that subsections (a) and (b) of appellant's negligence count resemble allegations of breach of contract, and that it appears to state an alternate theory of recovery. However, the remainder of the allegations contained the negligence count suggest that appellee's conduct extended beyond mere nonfeasance and rose to the level of misfeasance. Further, appellant seeks two different measures of damages under the negligence and breach of contract counts. We do not find appellant's action for general negligence to be encompassed within her claim for breach of contract, and therefore find that they are separate and distinct causes of action.

Similarly, we find that Count X, which asserts a cause of action for medical malpractice, is separate and distinct. In that count, appellant alleged, inter alia, that appellee failed to adequately treat appellant, permitted non-medically licensed employees to override the professional opinion of four...

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