No. 1247 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division-Law, No. 5450 September Term, 1978.
Allen L. Feingold, Philadelphia, for appellant.
Marcy B. Tanker, Philadelphia, for appellee.
Price, Watkins and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 278 Pa. Super. Page 438]
Appellant appeals from an order of the court of common pleas sustaining appellee's preliminary objections and thereby dismissing the second count of appellant's three-count complaint. This case presents the question whether a claimant under Pennsylvania's No-fault Motor Vehicle Insurance Act*fn1 may recover punitive damages from the insured's insurance company for failure to pay his claim promptly. We hold that such damages are not recoverable under the Act and therefore affirm the order of the court of common pleas.
The pertinent facts are as follows. Appellant filed a three-count complaint in assumpsit and trespass against appellee. Count I of the complaint alleged that appellant
[ 278 Pa. Super. Page 439]
was riding as a passenger in a car insured by appellee when he sustained injuries as a result of an automobile accident. Appellant further alleged that when presented with his claim for medical expenses and lost wages resulting from the accident, appellee refused to make payment. Appellant therefore requested that the court grant him compensatory damages in excess of $10,000 as well as penalties, attorney's fees, interest and costs.
Counts II and III of the complaint, although inartistic in form, both requested punitive damages in excess of $10,000 as well as penalties, attorney's fees and costs. Count II was based on the theory that appellee's refusal to pay appellant's claim constituted a willful, wanton and malicious breach of contract. Count III sought recovery apparently on the basis of intentional infliction of emotional distress. In this regard, appellant asserted that appellee instituted a course of conduct designed to harass and frustrate him.
Appellee filed preliminary objections in the nature of a demurrer to Counts II and III and contended that punitive damages were not available to appellant under a breach of contract theory and that the No-fault Act provided appellant's exclusive remedy. The court of common pleas, per order of the Honorable James R. Cavanaugh, sustained appellee's preliminary objections to Count II of the complaint, thereby dismissing that count, but denied appellee's preliminary objections to Count III of the complaint. In a subsequent opinion supporting this order, Judge Cavanaugh concluded that appellant's action for punitive damages was not cognizable under the No-fault Act and that the general rule in Pennsylvania prohibits recovery of punitive damages in a breach of contract action.
On appeal,*fn2 appellant contends that Judge Cavanaugh erred in sustaining appellee's ...