Gordon v. Pennsylvania Blue Shield

• Decision Date: 04 October 1988
• Citation: 548 A.2d 600,378 Pa.Super. 256
• Parties: Gladys GORDON, Appellant, v. PENNSYLVANIA BLUE SHIELD, Appellee.
• Court: Pennsylvania Superior Court

Page 600

548 A.2d 600

378 Pa.Super. 256

Gladys GORDON, Appellant, v. PENNSYLVANIA BLUE SHIELD, Appellee.

Superior Court of Pennsylvania.

Argued June 30, 1988.

Filed Oct. 4, 1988.

[378 Pa.Super. 257] Joel M. Lieberman, Philadelphia, for appellant.

Don P. Foster, Philadelphia, for appellee.

Before TAMILIA, KELLY and HESTER, JJ.

KELLY, Judge:

This is an appeal from the Order of January 2, 1988 in which defendant's preliminary On December 10, 1985, plaintiff/appellant, Gladys Gordon, was operating a motor vehicle when she was struck from behind by another vehicle. As a result of this accident, Gordon sustained injuries. At the time, Gordon maintained automobile insurance with Erie Insurance Company for liability and no-fault benefits; Gordon maintained medical insurance with Philadelphia Blue Cross and Pennsylvania Blue Shield (Blue Shield) by virtue of her membership in her employer's group medical plan.

objections to plaintiff's complaint were granted. The trial court ordered Counts II through V stricken from plaintiff's complaint. Plaintiff appeals. We affirm.

Gordon claimed total medical bills from the automobile accident of $12,339.55. After exhausting her $10,000.00 no-fault benefits through Erie, Gordon submitted a secondary claim to appellee Blue Shield for the balance of $2,339.55. Blue Shield denied payment. Gordon then filed a five count complaint against Blue Shield alleging in Count I, breach of contract; in Count II, misrepresentation and deceit; in Count III, violation of the Unfair Trade Practices and Consumer Protection Law; in Count IV, punitive damages; and in Count V, class action status. Blue Shield filed preliminary objections to Gordon's complaint which were granted by the trial court. The trial court ordered Counts II through V of appellant's complaint stricken. Gordon now appeals to this Court and raises the following issue:

Does plaintiff, Gladys Gordon, have the private right to bring a cause of action against an insurance carrier for the violation of the Unfair Trade Practices and Consumer Protection Law?

(Appellant's Brief at 3).

Our standard of review of such cases has been set forth in Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986):

With respect to preliminary objections which are sustained by the trial court:

In determining whether the lower court properly dismissed the complaint, we must take as true 'every well pleaded material fact set forth in the pleading ..., as well as the inferences reasonably deducible therefrom.' Furthermore, we must bear in mind

the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary objections should be sustained, that doubt should be resolved by refusing to sustain the objections.

Pekular, 513 A.2d at 429 (citations omitted).

"Ordinarily, no point will be considered which is not set forth in the statement of questions involved or suggested thereby." Pa.R.A.P. 2116(a). In this case, we note that although the trial court struck Counts II, III, IV and V of appellant's original complaint, the issue now raised by appellant on appeal encompasses only the dismissal of Count III. This Court will address only the issue set forth in appellant's statement of questions presented, regardless of any other argument raised in appellant's brief. Thus, all arguments relating to the striking of Counts II, IV and V or the merits of any argument relating to those counts are waived. ^* First Seneca Bank v. Greenville Distributing Co., 367 Pa.Super. 558, 533 A.2d 157 (1987); Von Moschzisker, A Time Saving Method of Stating in Appellate Briefs, The Controlling

Question for Decision, 34 Yale L.J. 287 [378 Pa.Super. 260] (1924-25), reprinted in Von Moschzisker, Stare Decisis, Res Judicata, and Other Selected Essays, 207-25 (1929) (explaining the origin, purpose, and application of the rule requiring a brief statement of the questions presented).

I.

Our first task is to determine whether this appeal is properly before this Court. See Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987), quoting Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985). Appellant's cause of action for breach of contract was the sole claim not stricken from appellant's complaint by the court below. Count III of appellant's complaint, which was dismissed, alleged that Blue Shield violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., by violating the Unfair Insurance Practices Act, 40 P.S. § 1171.1, et seq.

This Court stated in Hardy:

Reiterating the rule set forth in Cloverleaf, if 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 and appealable as to those causes of action dismissed. Cloverleaf, 500 A.2d at 166.

* * *

* * *

Count IV (in trespass) alleges the existence of unfair or deceptive acts or practices under the Unfair Insurance Practices Act and/or the Pennsylvania Unfair Trade Practices and Consumer Protection Law. This claim is not present in Count I of appellants' complaint. It is a separate and distinct cause of action based upon statutory law. Therefore, the dismissal of Count IV, like Count III, was a final and appealable order, and may now be presented to this Court for consideration.

529 A.2d at 475. Thus, the dismissal of appellant's Unfair Trade Practices and Consumer Protection Law claim in Hardy was properly appealed.

In this case, Count III of appellant's complaint involves appellee's alleged violation of the Unfair Trade Practices and Consumer Protection Law. This claim is likewise separate and distinct from appellant's remaining breach of contract claim at Count I. Therefore, the order of the court below is final and appealable as it pertains to the dismissal of Count III of appellant's complaint.

II.

As to the merits of appellant's sole contention on appeal, we agree with the trial court that appellant has failed to properly state a cause of action under the Unfair Trade Practices and Consumer Protection Law. Our reasoning follows.

A.

We note initially that in Pekular v. Eich, supra, this Court explained that an action pursuant to the Unfair Insurance Practices Act would not preclude appellant from initiating a separate cause of action of existing common law remedies such as fraud and deceit. A common law cause of action for fraudulent misrepresentation could, therefore, have been properly before this Court. However, as we explained at the outset, appellant has waived any such claim on appeal by raising before this Court only the issue of whether the trial court erred in dismissing the Unfair Trade Practices and Consumer Protection Law claim stated in Count III the original complaint. No challenge to the dismissal of appellant's claim of misrepresentation and deceit, as raised in Count II of appellant's complaint, has been preserved on appeal. Therefore, we may not address a claim of fraudulent misrepresentation in the context of a common law cause of action.

B.

Appellant argues that a violation of the Unfair Insurance Practices Act by appellee in this case is a "per se or de facto violation" of the Unfair Trade Practices In the instant case, appellants sought statutory relief before the courts rather than requesting the Department of Insurance to review the action to determine whether a hearing was warranted. This act was contrary to D'Ambrosio [v. Pennsylvania National Mutual Casualty Insurance Co.] supra [494 Pa. 501, 431 A.2d 966], and the express administrative procedure as set forth in [J.C. Penney Cas. Ins. Co. v. Com. Dept. of Ins. 43 Pa.Cmwlth. 360, 402 A.2d 558 (1979) ]. Therefore, we hold that the court's dismissal of Count IV of appellants' complaint was proper with regard to the Unfair Insurance Practices Act.

and Consumer Protection Law. Appellant's complaint at 5, R.R. 16a. We decline to address appellant's claim as stated. When the appellants in Hardy, supra, attempted to raise a violation of the Unfair Insurance Practices Act before this Court, we made it clear that such an action was not properly within our jurisdiction. This Court stated:

Hardy, 529 A.2d at 478. It is not for this Court to determine whether appellant violated the Unfair Insurance Practices Act.

We follow the rationale set forth in Hardy, and note a distinction between that case and the instant case which must be addressed. In Hardy, appellants directly claimed a violation of the Unfair Insurance Practices Act. Count IV (in trespass) of the complaint in Hardy alleged the existence of unfair or deceptive acts or practices under the Unfair Insurance Practices Act and/or the Unfair Trade Practices and Consumer Protection Law. In the instant case, appellants have indirectly claimed a violation of the Unfair Insurance Practices Act by presenting the Unfair Insurance Practices Act violation as the...