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HUDOCK ET AL. v. DONEGAL MUTUAL INSURANCE COMPANY (04/22/70)

decided: April 22, 1970.

HUDOCK ET AL., APPELLANTS,
v.
DONEGAL MUTUAL INSURANCE COMPANY



Appeal from order of Court of Common Pleas of Luzerne County, July T., 1968, No. 1367, in case of Frank Hudock et al. v. Donegal Mutual Insurance Company et al.

COUNSEL

Philip F. Hudock, in propria persona, with him, Kenneth R. Bayless, Robert P. Hudock, and Hudock and Hudock, for appellants.

Harry Hiscox, with him Rosenn, Jenkins & Greenwald, for appellees.

Charles L. Casper, with him William J. Fahey and Eugene Nogi, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.

Author: Pomeroy

[ 438 Pa. Page 274]

On February 14, 1968, an apartment building located in Hazelton, Pennsylvania, and owned by appellants

[ 438 Pa. Page 275]

Frank and Mary Hudock was extensively damaged by fire At that time the Hudocks had in effect five policies of fire insurance on the building -- two policies with appellee Donegal Mutual Insurance Company, one with appellee Northern Insurance Company, one with appellee The Pennsylvania Insurance Company, and one with appellee Ohio Farmers Insurance Company. The aggregate limit of coverage for fire loss under these policies was $50,000.

In April, 1968, appellants filed a sworn statement in proof of loss with appellee insurance companies stating a total loss of $62,000 and claiming to be entitled to a recovery of $50,000 under the policies. The Donegal Mutual Insurance Company retained appellee Claude R. Martin Company, an insurance adjustment company, to handle appellants' claim; the Martin Company in turn referred the claim to its Hazelton resident agent, appellee Carl A. Pecora. The other three insurance companies retained appellee General Adjustment Bureau, Inc. to adjust the claims for them, and that company referred them to appellee Edmund M. Gromelski, its Hazelton branch manager. Thereafter, in June, 1968, appellee insurance companies, through their adjusters, offered to settle the claim for $32,623.56. Dissatisfied with this offer and unable to secure a better one, appellants commenced suit by filing a complaint which does not appear in the record before us. Subsequently, they filed an amended complaint, setting forth the facts above and praying for (a) compensation for their fire loss under the insurance policies, (b) damages in excess of the policy limits, plus expenses, interest and punitive damages for breach of contract by appellee insurance companies, and (c) similar damages for breach of contract by appellee insurance adjustment companies and their two respective local agents.

[ 438 Pa. Page 276]

All of the appellees filed preliminary objections to the amended complaint which included demurrers and motions to strike. The court below sustained the demurrers of both appellee adjustment companies and their agents to those counts of the complaint alleging breach of contract by them. The court also sustained the demurrers of the four appellee insurance companies with regard to the claims of punitive damages and damages in excess of policy limits. In that part of the order sustaining these demurrers, the court did not grant appellants leave to amend their complaint.*fn1 Appellants thereupon brought this appeal.

At the threshold of our consideration of this appeal we must determine whether and to what extent this order was an appealable one. As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Where, however, the order does, in effect, terminate the action between the parties, or so restricts the pleader with respect to further amendment of his complaint as virtually to put him out of court on the cause of action he seeks to litigate, it is a definitive and final ...


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