Appeal from the order entered March 14, 1986 in the Court of Common Pleas of Philadelphia County, No. 4965, April Term, 1985.
Alan Kear, Philadelphia, for appellants.
McEwen, Del Sole and Kelly, JJ. Del Sole, J., filed a concurring statement.
[ 365 Pa. Super. Page 209]
This is an appeal from the order of the trial court sustaining appellee's preliminary objections to appellants' original complaint and dismissing counts two, three and four of that complaint. We must first address whether this Court has proper jurisdiction to entertain appellants' issues on appeal.
[ 365 Pa. Super. Page 210]
Appellants contend in their Statement of Jurisdiction that this appeal is properly taken from the order of the lower court dismissing three causes of action. Appellants aver that all three dismissals are final and appealable orders as set forth by this Court in Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa. Super. 75, 500 A.2d 163 (1985). (Appellants' Brief at 2). We do not agree in toto.
In Cloverleaf, this Court stated:
 The first issue to be resolved is whether appellants are properly before this Court. 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 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
[ 365 Pa. Super. Page 211]
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.
In the instant case, the first count of the complaint, containing a cause of action for alleged breach of contract, awaits disposition in the trial court. The second count is merely a restatement of the first count and includes a claim for punitive damages . . . . Appellants are not 'out of court' on their cause of action for breach of contract; and, therefore, the trial court's rejection of their alternate theory and the claim for punitive damages contained in the second count was interlocutory. Such an order would not ordinarily be appealable.
347 Pa. Superior Ct. at 81-82, 500 A.2d at 166-7.
Applying our analysis in Cloverleaf to the facts of the instant appeal, we are unable to conclude, as appellant argues herein, that all three dismissals qualify as final and appealable orders.
Here, appellants filed a four count complaint against appellee after their dwelling and personal property were damaged in a fire. Count I of said Complaint alleged, in assumpsit, that appellee violated its agreement with appellants to provide a proper and adequate fire and/or hazard insurance policy. Count II, in trespass, alleged with specificity the carelessness and negligence which comprised appellee's breach of contract. Count III, in trespass, alleged that the conduct of appellee amounted to misrepresentation, fraud and deceit and demanded recovery for compensatory and punitive damages. Count IV, in trespass, alleged that appellee's actions constituted unfair or deceptive acts or practices under the Pennsylvania Unfair Insurance Practices Act, 40 P.S. 1171.1 et seq. and/or the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1 et seq.
[ 365 Pa. Super. Page 212]
Reiterating the rule set forth in Cloverleaf, if 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 and appealable as to those causes of action dismissed; where such separate counts merely state alternate theories to support recovery on a single cause of action, the dismissal of one count does not put plaintiff "out of court" as to the cause of action raised, and the order is therefore interlocutory and not appealable. Cloverleaf, 347 Pa. Superior Ct. at 82, 500 A.2d at 166.
To determine whether the causes of action in this case are final and appealable, we must look at each count individually. Here, of the four counts in the original complaint, all but Count I, alleging in assumpsit that appellee violated its agreement to provide adequate fire and/or hazard insurance, were dismissed. Should the cause of action of any of the three dismissed counts still exist within Count I, the dismissed count would be deemed an "alternate theory to support recovery on the same cause of action" as set forth in Cloverleaf, supra, and as such, appellant would not be found to be "out of court" as to that cause of action. Our individual analysis of the dismissed counts follows.
Count II (in trespass) asserts the particular acts of negligence and carelessness of appellee's breach of the agreement, which precipitated the alleged damages suffered. Though instituted as a trespass action in the original complaint, Count II presents what this Court has labelled a negligent breach of contract action. See Raab v. Keystone Insurance Company, 271 Pa. Super. 185, 412 A.2d 638 (1980). Because breach of contract is the cause of action which remains intact under Count I, and further, since appellee's negligence is specifically raised in Count I, paragraph 15 of appellants' complaint, appellants are not "out of
[ 365 Pa. Super. Page 213]
court" as to this cause of action.*fn1 Based on our test in Cloverleaf, the order dismissing Count II is deemed interlocutory and not final and appealable.
Count III (in trespass) asserts the theory of misrepresentation, fraud and deceit on the part of appellee. Appellants request judgment against appellee for compensatory and punitive damages. Though Count I refers to the misrepresentation of appellee in paragraph 14, that count is brought as an action in assumpsit. Count III reflects a common law action in trespass for fraud and deceit. Consequently, Count III is not merely an alternative theory supporting a single cause of action; this action is separate and distinct from a breach of contract action brought in assumpsit. Therefore, appellants are "out ...