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JANET CAPANNA v. TRAVELERS INSURANCE COMPANY (07/24/86)

filed: July 24, 1986.

JANET CAPANNA, ADMINISTRATRIX OF THE ESTATE OF JOHN CAPANNA, DECEASED; AND JANET CAPANNA, INDIVIDUALLY, APPELLANT,
v.
THE TRAVELERS INSURANCE COMPANY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil, at No. 2030 March Term, 1984.

COUNSEL

Richard A. Lefchak, Philadelphia, for appellant.

David M. McCormick, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ.

Author: Montemuro

[ 355 Pa. Super. Page 221]

On October 22, 1980, appellant's husband/decedent, John Capanna, died as a result of injuries suffered when the uninsured automobile which he owned and was operating on that day collided with another vehicle parked along the side of Interstate 95. On May 25, 1983, appellant submitted an application for basic loss benefits to the assigned claims bureau pursuant to the Pennsylvania Assigned Claims Plan (PACP).*fn1 Appellee, although assigned to process appellant's claims, has nevertheless refused to pay the claimed benefits.

On April 9, 1984, appellant filed a complaint in assumpsit setting forth three counts. The first count sought basic loss benefits in the nature of work loss benefits, medical expenses, and funeral expenses on behalf of the estate of appellant's decedent. The second count similarly sought work loss benefits, medical expenses, and funeral expenses

[ 355 Pa. Super. Page 222]

    yet alternatively on behalf of appellant as a "survivor". 40 P.S. § 1009.103. The third count sought "survivor's loss" benefits, id., on appellant's own behalf. On April 24, 1984, appellee filed preliminary objections to appellant's Counts I and II in the nature of a demurrer. By an order and opinion dated June 13, 1984, the Honorable Alfred J. DiBona, Jr., dismissed the first count in so far as it sought work loss benefits and dismissed the second count in toto. No appeal was taken.

Thereafter, in response to appellee's June 25, 1984 motion for judgment on the pleadings with respect to appellant's third count, Judge DiBona dismissed that count by an order dated August 9, 1984. On September 7, 1984, appellant filed the following notice of appeal:

NOTICE OF APPEAL

Notice is given that Janet Capanna, Administratrix of the Estate of John Capanna, Deceased; and Janet Capanna, individually, plaintiff above named, hereby appeals to the Superior Court of Pennsylvania from the final Order entered in this matter on August 9, 1984. Further, notice is given that plaintiff hereby appeals to the said Court from the interlocutory Order entered in this matter on June 13, 1984. (emphasis supplied).

Initially, we note that it is incumbent upon this court to consider the propriety of each appeal. See Indiana County Hospital Authority v. McCarl's Plumbing & Heating Company, 344 Pa. Super. 226, 496 A.2d 767 (1985). The appealability of an order may be raised sua sponte. Id.

In Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa. Super. 75, 500 A.2d 163 (1985), Judge Wieand cogently instructed as follows:

An appeal will lie only from a final order unless otherwise permitted by statute. 'A final order is usually one which ends the litigation or, alternatively, disposes of the entire case . . . "Conversely, an order is interlocutory and not final unless it effectively puts the litigant 'out of

[ 355 Pa. Super. Page 223]

    court.'"' Praisner v. Stocker, 313 Pa. Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa. Super. 553, 556, 421 A.2d 338, 339 (1980). See also Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa. C.S. § 742. 'As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.' Praisner v. Stocker, supra, 313 Pa. Super. at 337, 459 A.2d at 1258. This is so because in most such instances 'the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.' Id., 313 Pa. Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is 'out of court' with respect thereto. Id., 313 Pa. Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa. Superior Ct. at 341, 459 A.2d at 1260.

Id., 347 Pa. Superior Ct. at 80-81, 500 A.2d at 166-67. The question instantly before us is whether Judge DiBona's June 13, 1984 order was "interlocutory", as described in appellant's notice of appeal, or whether in fact that order was final and appealable. If the June 13, 1984 order was final, then appellant's delay of nearly three months renders the appeal ultimately taken untimely as to ...


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