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JOSEPH N. DEGENOVA AND RITA DEGENOVA v. DAVID G. ANSEL (12/09/88)

filed: December 9, 1988.

JOSEPH N. DEGENOVA AND RITA DEGENOVA, APPELLANTS,
v.
DAVID G. ANSEL, M.D. AND AMALGAMATED LIFE INSURANCE COMPANY



Appeal from the Order entered November 19, 1987 in the Court of Common Pleas of Philadelphia County, Civil, No. 1583 June 1987.

COUNSEL

Eugene D. McGurk, Jr., Philadelphia, for appellants.

Lynne P. Fox, Philadelphia, for appellees.

McEwen, Olszewski and Cercone, JJ.

Author: Mcewen

[ 382 Pa. Super. Page 215]

This appeal has been taken from the order of the trial court which sustained the preliminary objections filed by appellee Amalgamated Life Insurance Co. (hereinafter ALICO), and dismissed ALICO as a defendant in the trespass action commenced by the appellants, Joseph N. DeGenova and Rita DeGenova. We are constrained to reverse and remand.

Appellant Joseph N. DeGenova (hereinafter appellant) was diagnosed by his primary physician as having a nasal polyp in his left nostril, which would require surgical removal. Appellant, a retired member of the Amalgamated Cotton and Textile Workers Union, was insured by ALICO under a medical health benefits plan which required appellant to obtain a second opinion before ALICO would pay for any surgical procedure. ALICO, therefore, scheduled an appointment for appellant with David G. Ansel, M.D., for purposes of obtaining a second opinion as to the proposed surgical procedure. The present controversy arose from that visit.

Appellant filed a complaint against Dr. Ansel and ALICO alleging that Ansel had removed the polyp from his nose while he was being examined, without his consent or knowledge, and that the surgical removal had been performed negligently, resulting in harm to the appellant. Appellant sought recovery from ALICO based upon its alleged vicarious liability for the acts of its agent, servant, or employee, defendant Dr. Ansel. In response to the complaint, ALICO filed preliminary objections in which it (1) moved for a more specific pleading as to its alleged agency relationship with

[ 382 Pa. Super. Page 216]

Ansel, (2) moved to strike appellant's complaint for failure to attach a copy of the insurance policy as required by Pa.R.C.P. 1019(h), (3) moved to strike appellants' complaint on the ground that the action was preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. ยงยง 1001-1461, and (4) demurred generally. The trial court sustained ALICO's preliminary objections based on (1) its conclusion that appellants had failed to sufficiently plead, pursuant to Pa.R.C.P. 1019, an agency relationship between ALICO and Dr. Ansel, and (2) its conclusion that ERISA preempted the stated causes of action as to ALICO.

We note initially that the present appeal is properly before this Court. Although the grant of the preliminary objections filed by ALICO does not terminate the litigation, it effectively terminated the litigation against ALICO and is, therefore, appealable. See: Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 44, 489 A.2d 828, 831 (1985).

The standard of review which we apply when examining a challenge to an order sustaining preliminary objections in the nature of a demurrer is well-settled:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained ...


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