filed: October 16, 1981.
JESSIE EVANS, APPELLANT,
GOVERNMENT EMPLOYEES INSURANCE COMPANY
No. 217 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Civil Section of Phila. County at No. 2672 August Term 1978
Allen L. Feingold, Philadelphia, for appellant.
Marcy B. Tanker, Philadelphia, for appellee.
Spaeth, Cavanaugh and O'Kicki, JJ.*fn* Cavanaugh, J., files a dissenting opinion.
[ 291 Pa. Super. Page 343]
This appeal is from an order sustaining preliminary objections and dismissing the second and third counts of a three count complaint. The first count was in assumpsit and sought payments allegedly due under a no-fault motor vehicle insurance policy. The second and third counts were in trespass and alleged that appellee's failure to pay was a wilful, wanton and malicious breach of contract done with the intent to harass and frustrate appellant.
We have repeatedly held that an order dismissing some but not all of the counts in a multi-count complaint is interlocutory and not appealable because appellant is not out of court. Mitchell v. Center City Cadillac, 287 Pa. Super. 350, 430 A.2d 321 (1981); Bagshaw v. Vickers, 286 Pa. Super. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa. Super. 553, 421 A.2d 338 (1980). We have so held at least twice with regard to appeals from lower court orders sustaining preliminary objections to trespass counts in complaints in exactly the same form as the one here -- an assumpsit count claiming no-fault benefits and trespass counts alleging that the nonpayment was tortious. Brandon v. State Farm Insurance Company, 284 Pa. Super. 399, 425 A.2d 1163 (1981); Gurnick v. Government Employees Insurance Company, 278 Pa. Super. 437, 420 A.2d 620 (1980). Therefore, this appeal as well must be quashed as being an appeal from an interlocutory order not permitted by statute, general rule, or by permission following certification by the lower court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301-312.
Although this appeal is clearly interlocutory and must be quashed, we should in fairness to the parties explain why it has taken us so long to do so. Appellee did not challenge the propriety of this appeal either in its brief or by motion to quash. When this case was argued, we did not then recognize that the appeal was from an interlocutory order, but we were aware that the substantive issues presented were before
[ 291 Pa. Super. Page 344]
the Supreme Court. We therefore held this case until the Supreme Court's decisions in D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981), and Smith v. Harleysville Insurance Company, 494 Pa. 515, 431 A.2d 974 (1981). On returning to this case, after the Supreme Court's decisions in D'Ambrosio and Smith were filed, we recognized that the appeal was from an interlocutory order and had to be quashed. The failure of appellee to object does not confer jurisdiction we do not possess, 42 Pa.C.S.A. § 704(b)(2), and the issue of our jurisdiction is one we can and must raise sua sponte. Penstan Supply, Inc. v. Hay, 283 Pa. Super. 558, 424 A.2d 950 (1981).*fn1
Although the merits of appellant's claim for punitive damages are therefore not properly before us, since we did hold this case until we could have the benefit of the Supreme Court's decisions in D'Ambrosio and Smith, we note that the Court held in D'Ambrosio that there is no cause of action for punitive damages for the failure of an insurance carrier to properly handle a claim and that an insured's only redress is through the Unfair Insurance Practices Act, Act of July 22, 1974, P. L. 589, No. 205, 40 P.S. § 1171.1 et seq. In Smith which involved, as does this case, a no-fault motor vehicle insurance policy, the Court held the issue controlled by its decision in D'Ambrosio. Thus, were the merits of the lower court's order before us, we should affirm on the authority of D'Ambrosio and Smith.
CAVANAUGH, Judge, dissenting:
I would affirm the order of the lower court dismissing the trespass counts of the complaint on the authority of D'Ambrosio
[ 291 Pa. Super. Page 345]
*fn* Judge JOSEPH F. O'KICKI, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.