Appeal from the Order entered on December 12, 2007, in the Court of Common Pleas of Delaware County, Civil Division, at No(s). 06-52377.
The opinion of the court was delivered by: Lally-green, J.
BEFORE: LALLY-GREEN, KLEIN, and GANTMAN, JJ.
¶ 1 Appellant, Jerry Francesco, as assignee of PenTech Infusions, Inc. ("PenTech"), appeals from the trial court's December 12, 2007 order sustaining the preliminary objections of Appellee, Group Health Incorporated (GHI) and dismissing Appellant's complaint. We vacate and remand.
¶ 2 This dispute arises from an alleged agreement between GHI, a health care insurer, and PenTech, a provider of health care supplies. PenTech contacted GHI to ascertain whether a policy between GHI and its insured, Mary Horan, would cover certain medical supplies. GHI allegedly represented to PenTech that the policy would cover the supplies. PenTech provided the supplies to Horan and sought payment from GHI. GHI then denied coverage under the policy. PenTech and Horan both assigned any and all rights against GHI stemming from this incident to Appellant.
¶ 3 Appellant commenced this action against GHI on August 11, 2006, in his capacity as PenTech's assignee, alleging causes of action for promissory estoppel and breach of contract, and seeking payment for the items PenTech supplied to Horan. The basis for these claims is the alleged assurances from GHI that GHI would reimburse PenTech for the supplies. GHI filed a motion to dismiss on September 20, 2006, but the motion did not contain a notice to plead in accordance with Pa.R.C.P. 1026(a). GHI subsequently filed preliminary objections with the requisite notice to plead on October 12, 2006. Appellant timely filed an amended complaint on October 25, 2006, asserting additional causes of action for quantum meruit, negligent misrepresentation, and conversion.*fn1
¶ 4 On November 22, 2006, the trial court entered an order sustaining GHI's preliminary objections without mention of Appellant's amended complaint. This order was of no effect, given that Appellant's amended complaint superseded the preliminary objections. See Pa.R.C.P. 1028(f).*fn2
When GHI failed to respond to the amended complaint, Appellant attempted to take a default judgment. By agreement, GHI filed preliminary objections to the amended complaint on October 1, 2007. Appellant filed preliminary objections to GHI's preliminary objections, and on December 12, 2007, the trial court entered an order overruling Appellant's preliminary objections, sustaining GHI's preliminary objections, and dismissing Appellant's complaint. That order is the subject of this timely appeal.
¶ 5 Appellant raises three issues for our review:
1. Did the lower court err in dismissing for lack of subject matter jurisdiction plaintiff's causes of action which were not predicated on an assignment of rights from the insured but constituted direct causes of action against the insurer which do not implicate the Federal Employees Health Benefit Act?
2. Did the lower court err in dismissing the amended complaint based on a prior order sustaining preliminary objections to the original amended complaint when, at the time the order was entered, the preliminary objections had become moot through plaintiff's filing of an amended complaint?
3. Did the lower court err in failing to consider plaintiff's response to preliminary objections to the amended complaint which raised factual issues which could not be resolved without discovery?
Appellant's Brief at 5.*fn3
¶ 6 Since the trial court dismissed this claim on preliminary objections, our standard of review is de novo and the scope of our review is plenary. Luke v. Cataldi, 932 A.2d 45, 49 (Pa. 2007). Further: The material facts set forth in the complaint as well as all inferences reasonably deducible therefrom must be admitted as true. The court must determine from the facts averred, whether the law says with certainty that no recovery is possible. ...