Hornung v. Schauseil Ins. Associates, Inc.

• Court: Superior Court of Pennsylvania
• Writing for the Court: HOFFMAN
• Citation: 619 A.2d 775,422 Pa.Super. 472
• Parties: Jacob HORNUNG, Appellant, v. SCHAUSEIL INSURANCE ASSOCIATES, INC., Edmund and Dorothy M. Schauseil, Peter DePaul and Nevis DePaul.
• Decision Date: 28 January 1993

Page 775

619 A.2d 775 422 Pa.Super. 472 Jacob HORNUNG, Appellant,
v.
SCHAUSEIL INSURANCE ASSOCIATES, INC., Edmund and Dorothy M.
Schauseil, Peter DePaul and Nevis DePaul. Superior Court of Pennsylvania. Argued Oct. 27, 1992.
Filed Jan. 28, 1993.

Page 776

[422 Pa.Super. 474] Jonathan Petrakis, Valley Forge, for appellant.

Dion G. Rassias, Blue Bell, for appellees. (Submitted).

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from an order granting appellees' preliminary objections in the nature of a demurrer as to Counts IV, V and VI and as to all counts in the complaint regarding appellees Dorothy M. Schauseil and Nevis DePaul. Appellant presents the following questions for our review:

I. Where a shareholder's Complaint establishes that a corporation is wrongfully withholding 50% of his ownership interest therein and has refused shareholder's request for an accounting, are such facts sufficient to state a cause of action for an accounting and other equitable relief?

II. Where a shareholder's Complaint establishes that a corporation is wrongfully withholding 50% of his ownership interest therein and the officers and directors have refused to explain their actions or cooperate with shareholder, are such facts sufficient to support claims against the individual officers and directors?

Appellant's Brief at 2. For the following reasons, we quash in part and affirm in part.

[422 Pa.Super. 475] On September 28, 1990, appellant filed a complaint against appellees containing the following counts: (1) conversion; (2) breach of contract; (3) breach of fiduciary duties; (4) review of corporate actions pursuant to 15 Pa.C.S.A. § 1793; (5) request for custodian pursuant to 15 Pa.C.S.A. § 1767(a)(2); and (6) an accounting. On November 21, 1991, appellees filed preliminary objections in the nature of a demurrer as to all counts in the complaint. Appellant filed a response on January 22, 1992. On January 29, 1992, the lower court granted appellees' preliminary objections and dismissed appellant's complaint. Appellant filed a petition for reconsideration which was granted on February 10, 1992. Subsequently, on March 13, 1992, the lower court granted appellees' preliminary objections to appellant's complaint in part as to (1) Count I, paragraph 20, (2) Counts IV, V and VI, and (3) all counts in the complaint against appellees Dorothy M. Schauseil and Nevis DePaul. Appellant's timely appeal followed.

In light of the procedural posture of this appeal, we must first determine whether the trial court's partial grant of appellees' preliminary objections is an appealable final order. Only an order which effectively puts the litigant out of court is considered final and appealable. See Jackson

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v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-35 (1981) (citations omitted).

With respect to Dorothy M. Schauseil and Nevis DePaul, appellant is 'out of court' as all counts against them have been dismissed. See U.S. Nat. Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985) ("[T]he dismissal of a complaint as to one defendant upon its preliminary objections is a final and appealable order...."). Hence, that part of the trial court's order dismissing all counts against Dorothy M. Schauseil and Nevis DePaul will be reviewed on appeal.

However, our analysis does not end here. Regarding the other appellees, the lower court dismissed only Counts IV, V and VI. In general, "an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable." Praisner v. Stocker, 313 Pa.Super. 332, 337-38, 459 A.2d 1255, 1258 (1983) (citations omitted).

422 Pa.Super. 476] However, where separate and distinct causes of action have been joined in one complaint, a judgment entered on one or more of those causes of action is final and appealable because it terminates the litigation upon a separate cause of action and puts the litigant "out of court" on that cause of action. On the other hand, an order dismissing one or more counts of a multi-count complaint which merely sets forth alternate theories of recovery is interlocutory and not appealable because the plaintiff can still proceed to a determination on an alternate theory

Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 416-17, 589 A.2d 252, 254 (1991) (citations omitted). Because Counts IV, V and VI are not separate and distinct from the remaining causes of action, they are interlocutory and not...