Shaffer v. Pennsylvania Assigned Claims Plan Ins. Co. of North America

Decision Date04 December 1986
Citation518 A.2d 1213,359 Pa.Super. 238
PartiesPeter H. SHAFFER, Administrator of the Estate of Gail F. Jakovac and Trustee Ad Litem of Keirsten Leigh Jakovac and Gerald Jakovac v. PENNSYLVANIA ASSIGNED CLAIMS PLAN INSURANCE COMPANY OF NORTH AMERICA and Nationwide Mutual Insurance Company. Appeal of NATIONWIDE MUTUAL INSURANCE COMPANY.
CourtPennsylvania Superior Court

Lee C. McCandless and James E. Kerr, Butler, for appellant.

William D. Kemper, Butler, for Shaffer, appellee.

Stephen R. Mlinac, Pittsburgh, for Pa. Assigned, appellee.

Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.

BECK, Judge:

Appellees Gerald Jakovac (Gerald) and Peter H. Shaffer 1 filed claims against Nationwide Mutual Insurance Company (Nationwide) and Insurance Company of North America (INA) under the No-fault Motor Vehicle Insurance Act (No-fault Act) 2 and the Uninsured Motorist Act. 3 The court granted INA's motions for summary judgment, and INA was released from the case. Appellant Nationwide was found liable to the Appellees.

Nationwide appeals the order granting summary judgment to INA and the judgment awarding damages in favor of Gerald Jakovac, Keirsten Jakovac, and the estate of Gail Jakovac. For the following reasons we quash the appeal as to the granting of summary judgment to INA and otherwise reverse in part and affirm in part the judgment of the Court of Common Pleas of Butler County.

The pertinent facts underlying this appeal are undisputed. On November 11, 1979, Gerald was driving with his wife Gail as a passenger in Gail's uninsured 1977 Toyota automobile when the car struck a bridge abutment. Gerald was injured, and Gail died as a result of injuries sustained in the one-car accident. At the time of the accident, Gerald owned a 1977 Ford pickup truck which was insured by Nationwide under a business auto policy. The only motor vehicle designated in the business auto policy as a "covered automobile" was Gerald's 1977 Ford pickup truck, and Gerald was listed as the sole policyholder of the business auto policy. As a result of the accident, suit was filed on behalf of Gerald, Gail's estate, and Keirsten (Gerald and Gail's daughter) against the Pennsylvania Assigned Claims Plan, 4 INA as the assignee insurer under the assigned claims plan of the No-fault Act, and Nationwide as the insurer under Gerald's business auto policy.

All of the parties to the suit filed motions for summary judgment in their favor on the issues of liability raised by the suit. In the trial judge's order of July 23, 1982, summary judgments were granted as follows:

(1) for Gerald and against Nationwide on Gerald's no-fault claim, plus interest and attorney's fees;

(2) for Nationwide and against Gerald on Gerald's uninsured motorist claim;

(3) for Keirsten and against Nationwide on Keirsten's no-fault claim, plus interest and attorney's fees;

(4) for Nationwide and against Keirsten on Keirsten's uninsured motorist claim;

(5) for Nationwide and against Gail's estate for the estate's no-fault claim;

(6) for Gail's estate and against Nationwide on the estate's uninsured motorist claim, and

(7) for INA and against Gerald, Keirsten, and Gail's estate on all claims.

In summary, INA was released from all claims to all parties. Nationwide's liability to Gerald and Keirsten for no-fault benefits and Nationwide's liability to Gail's estate for uninsured motorist benefits were to be determined by the trial court. After a hearing, an order was issued by the trial court on September 17, 1984, assessing damages against Nationwide on the respective claims.

Nationwide then filed a timely motion for post-trial relief asserting, inter alia, that the trial court had erred in (1) ruling that Nationwide, rather than INA as the assigned claims plan insurer, was the appropriate obligor; (2) failing to recognize the No-fault Act's statute of limitations as a bar to the claim in the amended complaint for survivor's loss; (3) assessing attorney's fees against Nationwide; (4) refusing Nationwide a setoff against Gail's estate under section 501 of the No-fault Act for basic loss benefits payable by Nationwide, and (5) ordering payment of uninsured motorist benefits to Gail's estate since the uninsured vehicle was owned by Gail, the decedent. Nationwide's motion for post-trial relief was denied, and judgment was entered against Nationwide. Thereafter, Nationwide appealed.

In this appeal, Nationwide reiterates the arguments raised in its motion for post-trial relief. First, Nationwide contends that the trial court improperly adjudged Nationwide, rather than INA, liable as the obligor for the no-fault claims of Gerald and Keirsten and for the uninsured motorist claim of Gail's estate. In essence, Nationwide contests the propriety of the trial court's July 23, 1982, order granting summary judgments for INA on all the no-fault and uninsured motorist claims presented on behalf of Gerald, Keirsten, and Gail's estate. Initially, we consider whether Nationwide has timely appealed the issues concerning the summary judgments in favor of INA since the timeliness of an appeal affects our court's jurisdiction. Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983).

Pennsylvania Rule of Appellate Procedure 903(a) specifies that a notice of appeal is timely if it is filed within thirty days after entry of the order being appealed. Nationwide's notice of appeal was filed on January 11, 1985, approximately two and one-half years after the trial court granted summary judgments to INA. However, Nationwide asserts that the trial court's July 23, 1982, order granting INA summary judgments was not a final, appealable order. Nationwide maintains that only the September 17, 1984, judgment 5 entered against it was properly appealable as a final and duly entered order in the case. Inasmuch as Nationwide's appeal was filed within thirty days of the entry of the September 17, 1984, judgment, Nationwide argues that its appeal is timely. See Pa.R.A.P. 301. We disagree.

It is axiomatic that with the exception of certain enumerated classes of interlocutory orders not germane to this appeal, 6 an appeal lies only from a final order. Pa.R.A.P. 341; Pa.R.A.P. 1701(b)(6); Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Murphy. An order is final if it ends the litigation, disposes of the entire case, or effectively puts a party out of court by denying him the opportunity to present the merits of the case to the court. Fried. Hence, for example, an appeal cannot be taken from a court order which merely determines that a particular party is liable to pay damages, but the appeal must, instead, be taken from the entry of judgment which assesses the amount of damages payable by the liable party and thereby finally disposes of the entire case. Brown v. State Farm Mutual Automobile Insurance Co., 326 Pa.Super. 489, 474 A.2d 346 (1984); Navarro v. Ohio Casualty Insurance Co., 295 Pa.Super. 151, 441 A.2d 394 (1982); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); see Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975) (Roberts, J., dissenting), reh'g denied, December 30, 1975. This axiom concerning appeals from final orders has been codified in Pennsylvania Rule of Civil Procedure 1035(b) which states that "[a] summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages." See, e.g., Brown; Navarro; Inselberg.

In the case sub judice, the trial court's July 23, 1982, order released INA from the case and did not apportion any liability against INA. Accordingly, there was not an award of damages against INA to reduce to judgment. See Brown; Navarro; Inselberg; Pa.R.C.P. No. 1035(b). The granting of summary judgments to INA constituted a judicial determination that as a matter of law Gerald, Keirsten, and Gail's estate did not have a cause of action on which they could recover against INA. See, e.g., United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985) (order sustaining preliminary objections in the nature of a demurrer is a final, appealable order which is neither required nor permitted to be reduced to judgment); Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982) (order refusing to remove a compulsory nonsuit is a final, appealable order which is not required to be reduced to judgment). Therefore, that portion of the July 23 order which granted INA summary judgments terminated the litigation against INA and comprised a final, appealable order. Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (order granting summary judgments as to some defendants in multiple-defendant suit is a final, appealable order as to those defendants released from litigation); see Dash v. Wilap Corp., 343 Pa.Super. 584, 495 A.2d 950 (1985) (order dismissing a complaint as to one defendant in a multiple-defendant suit is a final, appealable order since it ends litigation with respect to the defendant against whom the complaint was dismissed).

Under Pa.R.A.P. 903(a), that part of the trial court's order granting INA summary judgments was final and appealable within thirty days of the order's entry. "The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure [is] the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by PA.R.Civ.P. 236(b)." Pa.R.A.P. 108(b). The trial court docket in the present case clearly shows that on July 26, 1982, copies of the trial court's July 23 order and accompanying memorandum opinion were sent to the parties' attorneys of record in accordance with Pa.R.C.P. No. 236. Consequently, in the instant case, July 26, 1982, is the order entry date which commenced the running of the thirty-day period for appealing the granting of summary judgments in favor...

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