author: PER CURIAM: TAMILIA, Judge,

text:
    529 A.2d 24
    Sara ROMANO, Administratrix of the Estate of Antonio Romano, and Sara Romano in Her Own Right; Ester Pyles, Administratrix of the Estate of Charles Pyle, and Ester Pyles in Her Own Right; Pauline Cisek, Administratrix of the Estate of Edward Cisek, Deceased and Pauline Cisek, In Her Own Right v. JOHNS-MANVILLE CORPORATION, et al.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1986.
    Filed March 6, 1987.
    Concurring Opinion Aug. 4, 1987.

      Daniel G. Childs, Philadelphia, for appellants.
    I. Steven Levy, Philadelphia, for Forty-Eight, appellee.
    Martin Greitzer, Philadelphia, amicus curae.
    Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM, WIEAND, McEWEN, DEL SOLE, TAMILIA, KELLY and JOHNSON, JJ.
   PER CURIAM:

Affirmed.

TAMILIA, Judge,

concurring:

I join the majority but file this Concurring Statement to make clear my view that the controlling law, in an appropriate case, remains that propounded in Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985) and Symbula v. Johns-Manville Corp., 343 Pa.Super. 541, 495 A.2d 598 (1985).

Initially, in order to enlighten the bench and bar as to the basic factual situation at issue, below is a verbatim summary as included in the unpublished majority memorandum:

These three appeals are from the orders of the trial court granting Appellees’ motions for summary judgment. In each case, an appellant brought a wrongful death and survival action for a decedent’s asbestos-related injuries and death.
The related issues in these appeals are: 1) the application of the “discovery rule” to the statute of limitations for wrongful death and survival actions, codified at 42 Pa.C.S.A. § 5524(2), following repeal of the former statutes of limitations 12 P.S. § 1603 (wrongful death) and 12 P.S. § 34 (survival actions), by the Judiciary Act Repealer Act (“JARA”) of April 28, 1978, P.L. 202, § 2a (310) (wrongful death) and (807) (survival actions), effective June 27, 1978 and, 2) the correctness of Symbula v. Johns-Manville Corp., 343 Pa.Super. 541, 495 A.2d 598 (1985), and Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985).

Per Curiam Memorandum, filed March 3, 1987, p. 1.

The en banc panel went on to determine that resolution of the issues would have to wait as the entry of summary judgment by the trial court was appropriate in that the wrongful death and survival actions were time barred by the then applicable statutes of limitations.

The argument of appellee is that death is an ascertainable event and, therefore, should not be covered by the discovery rule since there is nothing to discover. This ignores the fact that death is not a cause but a result and the cause of death and the cause of injury in given cases may be identical and equally subject to problems of ascertainment. Appellee simply harkens back to Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181 (1981). In Anthony, the Supreme Court held that the wording of the statute of limitations, as it applied to wrongful death, was so specific “one year after the death, and not thereafter”, there was no room for judicial construction. This was contrasted with personal injury cases where terms such as “injury” or the “accrual of a cause of action” were subject to judicial interpretation. Id., 496 Pa. at 123-24, 436 A.2d at 184. As to survival actions, the court treated discovery of the cause of injury after death as an injury occurring after death and thereby not capable of surviving the death, as it would in effect create a new cause of action. With the rewriting of the statute of limitations, 42 Pa.C.S.A. § 5524(2), any distinction between personal injury cases, survival actions and wrongful death actions was eliminated, and the stringent language, which Anthony found restrictive as to survival or wrongful death actions, was eliminated. To be consistent, we must apply the discovery rule to each cause of action equally or deny it to all. If we deny the discovery rule to all, we must repudiate Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983) and Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). If cause of death and cause of injury are indistinguishable and if the event (death) is eliminated as an absolute cap on tolling the statute since under the new statute (42 Pa.C.S.A. § 5524(2)) the distinction is eliminated between personal injury, survival and wrongful death actions, then standards for determining causation are indistinguishable. It is irrelevant that the cause of action may be brought by the individual in personal injury as opposed to the personal representative (even a bank as alleged by the appellee) in a wrongful death or survival action because the law has given the right of recovery to the parties designated. 42 Pa.C.S.A. § 8301 Death action, § 8302 Survival action. It is always possible to isolate a case where the recovery does not benefit the persons intended, but in most cases it will do so. As to the discovery rule, it is a judicially created exception that was required because of the injustice arising out of creeping disease cases, or any case where the cause is not immediately ascertainable (Pocono, Cathcart, supra), which the statute could not have contemplated since the usual application was to cases which could reasonably be evaluated within the two-year period.

This Court has reviewed these cases on a case by case basis and has not extended the discovery rule beyond its reasonable application. It is more likely than not in a given case (as here in Cisek) that the discovery rule will not be applied to set aside the statute, as the evidence does establish knowledge of causation or lack of diligence within the statutory period. The rule is there, however, for those cases which may be increasing because of scientific innovation with unforeseen results or where knowledge is not available until well into the statutory period or until after the statute of limitations has run. See Frey, The Glowing Globe, Pennsylvania Lawyer, Vol. 9, No. 1 at 11. Appellee would have us adopt a rule that in effect states that whenever a person has died, it is presumed that his personal representatives will know the cause of death. It is likely that in most cases representatives will know the cause, and if asbestos related, will have two years to bring an action from that time, or substituting for the deceased, from the time the deceased had knowledge, as in Cisek, supra. However, unless and until we are able to assume that all persons have proper medical advice available, all doctors and hospitals give unequivocally medically competent advice and all diseases can be absolutely identified, we need such a rule. The discovery rule has broader applications than asbestos cases and in some situations, greater problems of medical diagnosis.

This rule evolved out of a sense of justice and fair play and is particularly applicable to a category of cases which has been beset by denial, avoidance and mistreatment of people, at the hands of industry and government which is no less callous than that which occasioned the great reforms of safety and humane working conditions throughout the first half of this century. It is also relevant to government policies of shifting diagnosis whereby persons determined to be handicapped at one time are stricken from the roles of social security disability at a later time and new classes of disease are codified due to different interpretations of disabilities and their causes.

      . Pastierik was recently reversed by the Pennsylvania Supreme Court. In Pastierik v. Duquesne Light Company and Pastierik v. Johns-Manville, 514 Pa. 517, 526 A.2d 323 (1987), the Court determined the cause of action for wrongful death accrues at the time of death and not when the cause of death reasonably becomes known. Additionally, the Court held that the survival action acmes at the latest at the time of death, otherwise it accmes at the time the victim knew, or should reasonably have known, of his injury. Although Pastierik was reversed, the discussion included herein remains of importance in the discussion of the instant case and matter to be heard in the future.

      . These issues have since been resolved by the Supreme Court in Pastierik, supra. See footnote 1.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    529 A.2d 27
    Matter of J. Shane CREAMER, Esquire. Appeal of J. Shane CREAMER, Esquire.
    Superior Court of Pennsylvania.
    Argued May 27, 1987.
    Filed Aug. 4, 1987.

      Richard Sprague, Philadelphia, for appellant.
    Before ROWLEY, KELLY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County and involves the appeal of J. Shane Creamer, Esquire, from a finding by the trial court that he was in contempt of court due to his courtroom conduct in defending a client in a criminal jury trial. He was fined $500.00 for his conduct.

Appellant, Attorney Creamer, was defending one William G. Ison against charges of aggravated assault and related offenses arising from an incident in which one Vincent Regusters was alleged to be the victim. Ison and a co-defendant, Barry Hayes, were co-defendants charged with beating Regusters. At trial, Ison and Hayes, who were employed as security guards at a supermarket, maintained that Regusters was a shoplifter who they had apprehended as he was leaving the market. They claimed that Regus-ters started the altercation which resulted in his injuries by grabbing Hayes. Regusters claimed that he was handcuffed and beaten by the defendants and that he was not a shoplifter. As such, the outcome of the trial depended upon the credibility of Regusters.

At the trial, the appellant attacked the credibility of Regusters by attempting to show the jury that his trial testimony relative to the incident differed from statements he had made to the police. Appellant also attempted to discredit Regusters by demonstrating that he had an alleged financial stake in the outcome of the trial because he had filed a civil suit against the defendants claiming damages. The finding of contempt arose from appellant’s attempts to discredit Regusters and the trial court’s rulings relative to those attempts.

The actual incident which resulted in the contempt ruling occurred during closing argument when appellant, alluding to evidence that he was foreclosed from presenting, said to the jury, “Did you realize that you know more, we know more about you than you know about these defendants. For some reason the judge would not permit.” At that point an objection was interposed by the district attorney and sustained by the trial judge. A short time later appellant, in addressing the jury relative to their duty to search for the truth, said, “I tried to get the police reports into evidence.” An objection was again interposed, a sidebar conference requested by the district attorney, and appellant found in contempt of court at the sidebar conference. An argument then ensued as to whether the jury could have overheard the trial court’s statement holding appellant in contempt. Appellant insisted upon repeating the trial court’s admonishments to him made at sidebar so as to preserve them for the record. The trial court stated that it was appellant, not the court, who called the jury’s attention to the sidebar remarks. In any event, appellant was found in contempt and fined $500. He appeals from that ruling.

Appellant cites Canon 7 of the Code of Professional Responsibility which states that, “A lawyer should represent a client zealously within the bounds of the law.” However, this Canon does not excuse contemptuous conduct on the part of the lawyer. The issue at hand is whether appellant’s conduct during the jury trial constituted contempt of court.

Our Legislature, in defining contempt of court, has provided that:

The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.
42 Pa.C.S. 4131.

The issue which we must resolve is whether appellant’s conduct at trial falls within any of the three categories described therein.

Subsection (1) of 42 Pa. C.S. 4131 pertains to the conduct of ministerial duties by court reporters, sheriffs, prothono-taries, and other court personnel. Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981). As such, it is not applicable to the conduct of attorneys at trial. Subsection (2) of 42 Pa. C.S. 4131 permits contempt to be imposed for disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court. As such, it is not applicable to the conduct of attorneys at trial as it addressed disobedience of court process, such as, subpoenas, summonses, discovery motions and other forms of process used to command the presence of parties and witnesses and the providing of information. It is subsection (3) of 42 Pa. C.S. 4131 which addresses the issue of the conduct of attorneys at trial.

In order to sustain a conviction for contempt of 42 Pa. C.S. 4131(3) there must be proof of: (1) misconduct; (2) in the presence of the court; (3) committed with intent to obstruct the proceedings; (4) which obstructs the administration of justice. Commonwealth v. Collier, 353 Pa.Super. 543, 510 A.2d 796 (1986); Commonwealth v. Restifo, 339 Pa.Super. 225, 488 A.2d 633 (1985). In Restifo, an attorney attempted to place on the record what he felt were inappropriate remarks by the trial judge. As in the instant case, there was disagreement between the trial judge and the attorney as to what exactly had transpired. In overturning the contempt citation in that case we held that:

“... It is the responsibility of counsel to represent zealously, but with due regard for the dignity of the judicial process, the position of his or her client. Commonwealth v. Rubright, 489 Pa. 856, 364, 414 A.2d 106, 110 (1980). A trial court will not be permitted to stifle an attorney’s advocacy by refusing to allow an objection, and a request intended to perfect the record for subsequent review will not support a conviction for contempt. See and compare: In the Matter of Nugent [494 Pa. 2, 7-8, 427 A.2d 1154, 1157 (1980)] supra. Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court. In the Matter of Campolongo, supra, 495 Pa. at 633, 435 A.2d at 584; Commonwealth v. Garrison, 478 Pa. 356, 373, 386 A.2d 971, 979 (1978). inappropriate and even ill-mannered conduct which does not obstruct or delay the trial ‘falls short of that misbehavior which may be punished under (42 Pa. C.S. § 4131(3)).’ Commonwealth v. Rubright, supra, 489 Pa. at 364, 414 A.2d at 110. ‘Judges are supposed to be (persons) of fortitude, able to thrive in a hearty climate. Trial courts ... must be on guard against confusing offenses to their sensibilities with obstructions to the administration of justice.’ Commonwealth v. Stevenson, 482 Pa. 76, 96, 393 A.2d 386, 396 (1978) (Manderno (sic) J. dissenting), quoting In the Matter of Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708, 711 (1972).

In the instant case we find that appellant’s conduct at trial was not committed with intent to obstruct the proceedings. Nor • did it obstruct the administration of justice. While we can understand a trial judge’s frustrations with an attorney who insists repeatedly upon attempting to delve into areas which the court has foreclosed, we cannot hold that such attempts transcend the bounds of zealous advocacy and become contemptuous unless it can be shown that such was done with the intent to obstruct the proceedings. Since there is nothing of record to show that such conduct occurred in the instant case we must hold that appellant’s conduct was not contemptuous. Therefore, we will reverse the contempt citation.

Order reversed; jurisdiction relinquished.


author: CIRILLO, President Judge:

text:
    529 A.2d 29
    Barry and Sonja KUPPEL, Robert Musser and Lawrence H. Weaver v. Lester AUMAN, Appellant. Appeal of Richard AUMAN.
    Superior Court of Pennsylvania.
    Argued June 9, 1987.
    Filed Aug. 7, 1987.

      Robert D. O’Connor, Jr., Lock Haven, for appellant.
    James N. Bryant, State College, for appellees.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal of an order of the Court of Common Pleas of Centre.County denying appellant Richard Auman’s petition to vacate court orders issued on November 4, 1983 and October 30, 1984. We reverse and remand.

Plaintiff-appellees filed a suit in equity against defendant-appellant’s father, seeking a right-of-way across appellant’s land. The trial court entered a decree nisi on September 21, 1982, stating that a right-of-way was to be established in accordance with the agreement of the parties. On December 13, 1982, the trial court entered an order defining the right-of-way as an existing road across appellant’s property. On December 20, 1982, the appellant filed exceptions. On January 4, 1983, a suggestion of death was filed, and appellant’s son Richard Auman, was substituted.

On November 4, 1983, the court issued a further order giving the plaintiff the right of ingress, egress and regress over the lands in question. Exceptions were then filed to this order. On January 19, 1984, the exceptions were dismissed. On October 30, 1984, pursuant to a petition for contempt filed by the plaintiffs, the court ordered appellant to remove all obstacles from the right of way granted to the plaintiffs. Appellant was also enjoined from any future obstruction of the right of way.

On December 6, 1984, appellant Auman praeciped for entry of judgment of the January 19, 1984 order dismissing his exceptions. Final judgment was entered on December 6 and Auman appealed to this court on December 21, 1984. On April 6, 1986, a panel of this court reversed and remanded, holding that the trial court’s order was not supported by the record, 356 Pa.Super. 610, 512 A.2d 729.

Upon remand, at Auman’s request, the trial court appointed a Board of View to determine the issue. Appellant then filed a petition to vacate the orders of November, 1983 and October, 1984 on the grounds that the Court of Common Pleas lacked subject matter jurisdiction to issue those orders. Auman claims that under the applicable statute, only a Board of View may resolve this matter. See 36 Pa.S. § 2731 et seq.

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand nine hundred and thirty-six. 1936, June 13, P.L. 551, § 11; 1901, April 4, P.L. 65, No. 32, § 1; 1927, April 28, P.L. 485, § 1.

The trial court denied the petition, stating that the Board of View must determine whether the right of way is necessary but the court has jurisdiction over other issues in the case. The court also stated that the orders in question were akin to preliminary injunctions.

Appellee claims that Auman may not appeal the denial of a petition to vacate as that is an interlocutory order. This is an erroneous statement. If the orders were preliminary injunctions as stated by the trial court, Au-man’s petition to vacate was actually a request to dissolve an injunction. Denial of such a request is appealable as of right. See Pa. R.A.P. 311(a)(4) (Interlocutory Appeals as of Right).

However, there is actually no order in effect. Au-man filed exceptions to the November 4, 1983 order which were denied on January 19, 1984. Judgment was entered on this denial on December 6, 1984. It was this judgment which Auman appealed and which we reversed in our decision of April 6,1986. When an appellate court reverses the decision of a trial court and remands for new proceedings, the cause is restored to the status it had before the proceedings began. McGine v. State Mut. Ben. Soc., 135 Pa.Super. 35, 37, 4 A.2d 537, 538 (1939). The court order at issue thereby became null and void. As of the date of the appellate decision, the trial court edict had no continuing effect. It was a nullity. It had no more force than a wisp of smoke dissipated in the air.

The October 30, 1984 contempt order was based on a violation of the order of November 4, 1983. Because the November order was extinguished by the superior court in April, 1986, the order of October 30 also has no further validity. It is impossible to hold someone in contempt of an order which does not exist.

Appellant did not have to request the trial court to vacate the orders. The superior court had already taken that action. A trial court has no authority to enforce an order in opposition to the direction of this court.

Based on the foregoing, we reverse the decision of the Court of Common Pleas of Centre County and remand for further proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction relinquished.

      . We do not suggest that the trial court in this case deliberately flouted our authority. The procedural posture of this matter is so confusing that we are more than willing to assume that the court was unable to discern what was appealed, what was reversed and what was still in effect.


text:
    529 A.2d 31
    In the Interest of M.A., a minor; York County Children & Youth Services; B.R., Natural Mother; and N.A., Natural Father.
    Superior Court of Pennsylvania.
    Argued June 11, 1987.
    Filed Aug. 7, 1987.

      Daniel Fennick, York, for M.A., appellant.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order terminating the legal custody of appellant which was held by York County Children and Youth Services (YCCYS). We affirm.

The sole issue presented for our review is whether the trial court properly terminated YCCYS’s legal custody of appellant, thereby discharging that agency’s duty to provide certain services for the appellant.

The appellant, M.A., was born on January 14, 1972. Pursuant to a voluntary petition filed by appellant and her parents in February 1985, the trial court adjudicated her a dependent and awarded legal and physical custody of appellant to YCCYS.

In April 1987, the trial court was presented with an agreement by all the parties in interest whereby legal custody of the appellant in YCCYS was to be terminated. This would have the effect of ending the trial court’s continuing supervisory role as well as ending appellant’s eligibility to participate in certain rehabilitative and counseling programs. It seems that the appellant wants to discharge YCCYS from its custodial role, while at the same time enjoy the benefits of a Youth Advocate Program.

The trial court stated that the “issue now comes down to M.A. wanting to dictate which services she will use and insisting on the right to reject those services she chooses.” The trial court described the stormy experience that the appellant had with YCCYS, but recognized that some improvement had resulted. Appellant was granted an extension of the benefits of the Youth Advocate Program beyond the termination of YCCYS’s custody, until the beginning of June 1987 which was the end of her school year. Noting the budgetary restraints involved in contrast with the large number of people needing help, the trial court concluded that after early June of 1987, the services provided by the Youth Advocate Program should be used to afford other juveniles and their families an opportunity to benefit from them as appellant had.

Appellant argues that the Juvenile Act requires the Commonwealth to continue to provide the same services to which a dependent child would be entitled. The purpose of the Juvenile Act is “to preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter,” as well as “to achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.” 42 Pa.C.S. § 6301(b)(1), (3).

The applicable definitions of a dependent child include one who is without proper parental care or control; has been abandoned by or is without parents or other legal custodian; or is under the jurisdiction of the court pursuant to an adjudication of dependency. 42 Pa.C.S § 6302. Although appellant satisfied one or more of these definitions in February 1985, we agree with the trial court that she no longer fits the applicable statutory description of a dependent child for the purposes of the Juvenile Act.

As we stated in Commonwealth v. Davis, 330 Pa.Super. 551, 479 A.2d 1041 (1984), the benefits of the Juvenile Act are “only [for] those children who come within the provisions of the Juvenile Act.” Id., 330 Pa.Superior Ct. at 558, 479 A.2d at 1045 (citing 42 Pa.C.S. § 6301(b)(1)). The Davis court recognized that § 6303(a) of the Juvenile Act describes its limited scope as applicable exclusively to four enumerated scenarios. Id. The only relevant applicability of the Act in this case would be those “[proceedings in which a child is alleged to be delinquent or dependent.” 42 Pa.C.S. § 6303(a)(1). We have previously determined that the appellant is not dependent pursuant to the Act, and there is no allegation before us that she is delinquent. Therefore, we must conclude that she does not enjoy the benefits of the Act. See Davis, 330 Pa.Super. at 558, 479 A.2d at 1045.

Unfortunately, appellant assumes without persuading that she is dependent. Thus, she inappropriately bases her argument on the duties that the Commonwealth owes to a dependent child. Indicative of this assumption is her citation to Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976), which merely discusses the treatment to which deprived or dependent children are entitled. This begs the question.

We find nothing in the Juvenile Act which would entitle appellant to require the YCCYS to provide the services that she requests without charge. The particular service which she seeks apparently must also provide for many other more needy citizens. Just as a child cannot expect his natural parents to have unlimited resources, so too, the Commonwealth in its role as parens patriae cannot be expected to provide unlimited resources for the benefit of all those who may arguably need them.

Order affirmed.

      . This program of limited availability includes counseling which, it seems, appellant would still like to receive without charge.

      . The appellant is represented by counsel in this appeal.


author: HESTER, Judge:

text:
    529 A.2d 33
    INSURANCE COMPANY OF NORTH AMERICA v. Connie L. BISHOP, Guardian of the Estate of Clyde Bishop, Defendant and Teamsters Local No. 429 Health and Welfare Fund. Appeal of TEAMSTERS LOCAL NO. 429 HEALTH AND WELFARE FUND.
    Superior Court of Pennsylvania.
    Argued June 11, 1987.
    Filed Aug. 3, 1987.

      George F. Douglas, Jr., Carlisle, for appellant.

      David Schwalm, Harrisburg, for Insurance Co. of N.A., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

This appeal followed the trial court’s refusal to open a summary judgment. We conclude that appellant has failed to allege sufficient grounds to warrant opening the judgment, and affirm.

Clyde Bishop was seriously injured on October 19, 1978, when the vehicle he owned and was operating collided with a tractor-trailer owned by Hall’s Motor Transit Company and operated by one of its drivers. Bishop, in violation of the former Pennsylvania No-fault Motor Vehicle Insurance Act (the “Act”), was uninsured. On April 23, 1979, his wife, as his guardian, applied for benefits under the Assigned Claims Plan of the Act. The claim was assigned to the Insurance Company of North America (“INA”). Between the date of the accident and the date INA began paying benefits, Bishop’s medical expenses of $66,741.27 were paid by the Teamsters Local No. 429 Health and Welfare Fund (the “Fund”) under a group policy for union members.

Bishop subsequently received a structured settlement in excess of $250,000 in a tort action instituted by his guardian against Hall’s Motor Transit Company and its driver. Pursuant to section 501 of the Act, INA then filed suit against Bishop’s guardian for reimbursement of the $41,359 in no-fault benefits previously paid to Bishop. The guardian joined the Fund as an additional defendant claiming that, if INA was entitled to reimbursement for benefits paid, the payment should be made by the Fund pursuant to its insurance policy for union members. The Fund filed a counterclaim against INA seeking reimbursement of the $66,741.27 which it paid before INA began making payments. Cross-motions for summary judgment were filed by the parties.

On September 11, 1981, President Judge Quigley of the Perry County Court of Common Pleas ruled that INA had a right to be reimbursed by Bishop, the owner-operator of the uninsured vehicle, but not from the proceeds of Bishop’s recovery against the third party tortfeasor for non-economic detriment not covered by no-fault.

He next addressed the issue as to which of the two insurers, INA or the Fund, would be primarily liable for the benefits they had respectively paid to Bishop as a result of the accident. He decided that INA was secondarily liable, despite the fact that the Fund’s policy which insured Bishop excluded coverage for “services paid or payable by any other insurance carrier.” INA successfully argued that the assigned claims provision in the Act was only operative if no other insurance was available and that the Fund provided such insurance. The judge reasoned that the escape clause in the Fund’s policy was not effective against INA in this situation, as benefits provided pursuant to the Act should be viewed as excess or secondary insurance under the Act. He observed,

First, the Act itself indicates that benefits paid under an assigned claim are to be secondary to other benefits received and receivable by the victim. 40 P.S. § 1009.-108(a)(3). More importantly, to find this coverage to be primary would violate the purpose of the No-fault Act requiring insurance for all motor vehicles required to be registered in Pennsylvania. In fact, it would have the effect of encouraging owners not to provide the required security on their vehicles, knowing that they would be covered under the assigned claims plan.
The Teamster’s Fund was an already existing insurance provider responsible for medical expenses incurred by Bishop. INA was merely an assigned no-fault carrier. Insurance companies and their insureds who regularly pay premiums for their no-fault coverage should not have to bear the burden of supporting an assigned claim when the uninsured owner and victim had other available insurance to pay the expenses he incurred as a result of the accident.

Trial court opinion, 9/11/81, at 18.

On November 9, 1981, following reargument, final judgment was entered in favor of INA against the Fund in the amount of $41,359.00; in favor of the guardian against the Fund in the amount of $66,741.27, with payments to continue until the policy obligations were exhausted; and in favor of INA against the guardian in the amount of $41,359.00, with recovery limited to the assets of the estate other than the proceeds of the settlement in the tort action against Hall’s Motor Transit Company.

On appeal, this court affirmed the trial court judgment in a memorandum opinion filed April 29, 1983. On October 4, 1983, the Supreme Court of Pennsylvania denied the Fund’s petition for allowance of appeal, but granted INA’s cross petition for allowance of appeal which sought review of that portion of the judgment that had denied reimbursement from Bishop’s settlement proceeds. The appeal by INA was discontinued on October 21, 1983.

The Fund filed a petition to open judgment on June 30, 1984, setting forth the following allegations:

1. When on September 9, 1981, judgment was entered by the Court in favor of the Insurance Company of North America, hereinafter called “INA”, and against Teamsters Local No. 429, Health and Welfare Fund, hereinafter called “Teamsters”, it was the belief of this writer, and we believe the Court, that the $41,359.00 was for hospital and doctor bills.
2. Admittedly, INA continued to make payments on behalf of Clarence Bishop, so that by the time that Teamsters’ Petition for Allowance of an Appeal to the Supreme Court was denied, INA had paid out a total of $53,153.54 on Bishop’s behalf.
3. When INA complied with this writer’s request on November 9, 1983, by supplying a breakdown of their $53,253.54 in payments, it was discovered by Teamsters that these payments were for wage loss and nursing home care, neither of which are due from Teamsters to their members under their major medical plan.

On September 4, 1986, Judge Quigley denied the motion to open judgment. This appeal by the Fund followed.

The Fund argues that the $53,153.54 judgment in favor of INA should be opened as that amount represents payment for nursing home and work loss not covered by its policy. Citing authorities that discuss opening of default judgments, it relies primarily on the “equitable considerations” involved in making it pay for expenses not covered by the terms of the policy.

Appellant’s reliance on this authority is misplaced. The judgment in the present case was not entered by default or by confession pursuant to warrant of attorney. It was a judgment entered in a contested proceeding pursuant to court order following cross-motions for summary judgment. The law applicable to opening judgments not entered by confession or default is clear:

“Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after it has become final.” A judgment entered in adverse proceedings becomes final if no appeal therefrom is filed within thirty days. See: 42 Pa.C.S. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Similarly, it cannot be “opened.”
“This doctrine, respecting judgments entered in adverse proceedings, has a very definite function, namely, to establish a point at which litigants, counsel and courts ordinarily may regard contested lawsuits as being at an end. A contested action yields a judgment in which the value of finality is greatest. There has been a decision following an examination of the critical issues through bilateral participation of the parties. For all the reasons that finality of judgments is important, such a judgment should be invulnerable except upon a showing of extraordinary miscarriage.”
Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court. ”

Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 243-45, 504 A.2d 335, 337 (1986) (en banc) (citations and footnote omitted) (emphasis added); accord Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987).

The judgment in this case was final before the petition to open was filed. The Fund’s mistaken belief about the nature of INA’s payments was not fraudulently created by INA, nor does it constitute a grave or compelling circumstance justifying a disturbance of the finality of this judgment. A “mistake of fact” simply is not an extraordinary cause warranting our intervention, especially since the Fund was on notice that benefits payable under the Act covered more than medical expenses. It could easily have ascertained the type of benefits INA had paid during the trial court proceedings. Although not necessary to our ruling, we are also persuaded by INA’s assertion that it relied on the judgment in its favor when it discontinued its appeal of the portion of the judgment denying reimbursement from Bishop’s settlement proceeds. -

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, Sec. 108, 40 P.S. § 1009.108, repealed by Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984.

      . § 1009.501 Uninsured motorists
      The obligor obligated to pay basic loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all the benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of his motor vehicle registration and operator’s license.
      Act of July 19, 1974, P.L. 489, No. 176, Art. V, Sec. 501, 40 P.S. § 1009.501 (repealed 1984).


author: HOFFMAN, Judge:

text:
    529 A.2d 37
    COMMONWEALTH of Pennsylvania v. Harold PLASTERER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1987.
    Filed July 21, 1987.

      Federick W. Ulrich, Assistant Public Defender, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.
    Before BROSKY, DEL SOLE, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for four counts of unlawful delivery of a controlled substance, 35 P.S. § 780-113(f)(1.1), and two counts of criminal conspiracy. Appellant contends that his sentence was excessive. For the reasons that follow, we vacate the judgment of sentence and remand for resentencing.

Appellant pled guilty to the above-stated charges following a hearing on September 24, 1986. The offense of unlawful delivery of a controlled substance is graded as a felony and carries an offense gravity score of four. See Sentencing Guidelines, 204 Pa.Code § 303.8(c)(3), reprinted following 42 Pa.C.S.A. § 9721. He was assigned a prior record score of zero. See Sentencing Hearing, N.T. November 12, 1986 at 7. The recommended ranges for sentencing that correspond to these scores are the following: standard range — zero-to-twelve months; aggravated range — twelve-to-eighteen months; mitigated range — non-confinement. 204 Pa.Code § 303.9(b). Appellant was sentenced to four consecutive two-to-five-year terms of imprisonment for the four counts of unlawful delivery of a controlled substance, and two two-to-five-year terms of imprisonment for conspiracy to run concurrently with the other sentences. He also was fined $10,000 and ordered to pay $3,300 restitution. Appellant filed a motion to modify his sentence alleging that it was excessive. His motion was denied, and this appeal followed.

Initially, we note that a defendant does not have an appeal as of right from the discretionary aspects of his or her sentence for a felony or misdemeanor. Section 9781 of the Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, provides in relevant part as follows:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

Id. § 9781(b). The notice of appeal, see Pa.R.A.P. 902, operates as a “petition for allowance of appeal.” See Pa.R.A.P. 341 note; Pa.R.A.P. 902 note. See also Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 472-73, 491 A.2d 1352, 1353-54 (1985). “In effect, the filing of the ‘petition for allowance of appeal’ contemplated by [§ 9781] is deferred by these rules until the briefing stage____” Pa.R.A.P. 902 note. Pa.R.A.P. 2119(f) provides as follows:

An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Id. See also Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987) (error for court to address merits of appeal from discretionary aspect of sentencing when appellant failed to comply with Pa.R.A.P. 2119(f)).

In Commonwealth v. Easterling, 353 Pa.Superior Ct. 84, 509 A.2d 345 (1986), we held that if one of the following circumstances is before us, then appellant has presented a substantial question that the sentence imposed was not appropriate and we may grant allowance of the appeal:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

Id., 353 Pa.Superior Ct. at 89, 509 A.2d at 348 (quoting 42 Pa.C.S.A. § 9781(c)).

Here, appellant alleges in his brief that we should allow his appeal because the lower court sentenced him outside of the Sentencing Guidelines and the sentence is unreasonable. From appellant’s statement, it “appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). We shall therefore allow appellant’s appeal.

Appellant contends that the lower court abused its discretion in sentencing him outside of the guideline ranges without considering any factors other than the nature of the crime. We agree. Sentencing is within the sound discretion of the sentencing court and we will not disturb the sentence absent an abuse of that discretion. Commonwealth v. Terrizzi, 348 Pa.Superior Ct. 607, 609, 502 A.2d 711, 712 (1985). Our Supreme Court has held that the sentencing court must state, on the record, its reasons for the sentence to enable a reviewing court to ascertain “whether the sentence imposed was based upon accurate, sufficient and proper information.” Commonwealth v. Riggins, 474 Pa. 115, 131, 377 A.2d 140, 148 (1977). See also 42 Pa.C.S.A. § 9721(b) (court must disclose in open court at time of sentencing, reason(s) for sentence imposed). Moreover, when the sentence is outside of the guideline ranges, the court must provide a contemporaneous written statement of the reasons for deviation from the guidelines. Id.

In selecting an appropriate sentence, a court is required to consider the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Id. When imposing a sentence of total confinement, the court must consider the history, character, and condition of the defendant as well as the nature and circumstances of the crime. Id. § 9725. These sentencing provisions make it clear that a court may not consider the nature and circumstances of the crime to the exclusion of all other factors in imposing a sentence. Accord Commonwealth v. Peters, 358 Pa.Superior Ct. 94, 97, 516 A.2d 1197, 1199 (1986); Commonwealth v. Arent, 352 Pa.Superior Ct. 520, 523, 508 A.2d 596, 597 (1986). We also note that the sentencing court’s reasons for a particular sentence must be given contemporaneously with the imposition of the sentence. A more extensive explanation in an opinion filed pursuant to Pa.R.App.P. 1925(a) will not cure a failure to articulate reasons at the time of sentencing. See Commonwealth v. Holler, 326 Pa.Superior Ct. 304, 308-09, 473 A.2d 1103, 1106 (1984).

Here, the sentencing court stated that it intended to sentence appellant outside of the guideline ranges for the following reason:

We feel that the crimes are obviously quite serious, selling cocaine. It involves large quantities. This is no ten or 30 or $40.00 packet and it was over a period of time which indicates a certainly continuing activity. I also note the guidelines themselves state that in drug cases, it may well be that the crimes may warrant a sentence more severe than otherwise in drug cases and we intend to therefore go beyond the guidelines for the reason stated.

N.T. November 12, 1986 at 10-11. The court stated no other reasons for its imposition of a lengthy sentence of confinement and fine. The record discloses that the court failed to consider appellant’s history, character, condition, or any mitigating factors that might have been presented. After reviewing the transcript of the sentencing proceeding, we conclude that the court abused its discretion in focusing on the nature of the crime to the exclusion of any other factor relevant to sentencing. Accordingly, we vacate the judgment of sentence and remand for resentencing consistent with this opinion.

Judgment of sentence vacated and case remanded. Jurisdiction is relinquished.


author: HESTER, Judge: BECK, Judge,

text:
    529 A.2d 466
    E. Newbold SMITH, Margaret Dupont Smith, Stockton N. Smith, Eleuthera S. Grassi and Henry B. Dupont Smith v. Lewis Dupont SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1987.
    Filed July 21, 1987.

      James B. Crummett, Philadelphia, for appellant.
    Leonard Dubin, Philadelphia, for appellees.
    Before CIRILLO, President Judge , and BECK and HESTER, JJ.

       President Judge Cirillo replaced the deceased Justice Roberts.

   HESTER, Judge:

This is an appeal by an adjudicated incompetent from a final order. The trial court found appellant to be incompetent due to mental illness, making him liable to dissipate his assets and become the victim of designing persons. The trial court appointed a financial institution as guardian of appellant’s estate. We affirm.

On April 11, 1985, appellees, who are parents and siblings of appellant, filed an ex parte petition for a preliminary injunction in the Orphans’ Court Division of the Chester County Court of Common Pleas, requesting that appellant be restrained from transferring any of his substantial assets to organizations affiliated with Lyndon LaRouche. At the same time, appellees filed a petition requesting an adjudication of incompetency and the appointment of a guardian of the estate of the incompetent.

On November 12, 1985, following several- evidentiary hearings, the trial court found that appellant, by reason of mental illness, was unable to manage his property or was liable to dissipate it or become the victim of designing persons. The trial court issued an adjudication and decree nisi finding appellant incompetent which became a final order on July 23, 1986, after the denial of appellant’s exceptions.

Appellant raises six issues in this appeal: 1) whether appellees met their burden of proving by clear and convincing evidence that appellant suffered from a mental illness; 2) whether the trial court erred by labeling a “personality disorder” as a mental illness; 3) whether appellees met their burden of proving by clear and convincing evidence that appellant was liable to dissipate his property or become the victim of designing persons; 4) whether the trial court erred by including the support of a political philosophy or organization within the ambit of the phrase “become the victim of designing persons”; 5) whether the competency statute is constitutional as applied to appellant; and 6) whether the competency statute is constitutional on its face.

Appellant’s constitutional issues must be considered first. We decline to address these issues as appellant did not give notice to the Attorney General of Pennsylvania as required by Pa.R.A.P. 521. Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985).

Our scope of review in determining whether an individual should be adjudicated incompetent and have a guardian of his estate appointed is well established. The trial court has the sound discretion to determine whether the appointment of a guardian is necessary and this court will not reverse absent an abuse of that discretion. In re Earnshaw, 187 Pa.Super. 124, 144 A.2d 480 (1958). “We do not substitute our judgment for that of the court below; even though we, had we been sitting in judgment below, might have reached a contrary result.” Matter of Caine, 490 Pa. 24, 29, 415 A.2d 13, 16 (1980) quoting Myers Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959).

A guardianship can be imposed if it is established that a person is, under 20 Pa.C.S. § 5501, “unable to manage his property, or is liable to dissipate it or become the victim of designing persons.” Additionally, it must be established that this “inability to manage one’s property results from ‘infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety.’ ” Matter of Caine, supra, 490 Pa. at 28, 415 A.2d at 15 quoting Porter Estate, 463 Pa. 411, 415, 345 A.2d 171, 173 (1975). Finally, appellant’s incompetence must be established by clear and convincing proof. Matter of Caine, supra, 490 Pa. at 28, 415 A.2d at 15.

Appellant argues that appellees failed to prove by clear and convincing evidence that he was suffering from a mental illness. The trial court found that appellant’s personality began to change in early 1985; from “happy-go-lucky” to serious, withdrawn and hostile to his family. Trial court opinion, 11/12/85, at 1. Simultaneously, appellant became increasingly involved with the Lyndon LaRouche organization. Appellant loaned Caucus Distributions, Inc., an affiliate of the LaRouche organization, $212,-000 within two months. This loan was evidenced by an unsecured promissory note for $142,000. Appellant testified that he would not be upset if the loan were not repaid and he was not certain that it would be. R. at 170a. Trial court opinion, 11/12/85, at 2.

Additionally, the trial court found that during the three years prior to this action, appellant incurred substantial losses as the result of ill-advised business investments. Appellees’ expert witness, a psychiatrist, who met with appellant and examined several of his writings, concluded that appellant was suffering from a schizoaffective disorder and was likely to become the victim of designing persons. Id. at 2.

Moreover, appellant’s expert witnesses, a psychiatrist and a psychologist, testified that appellant was suffering from a mixed personality disorder with inadequate and immature features. R. at 640a-41a, 807a. Upon examination of appellant’s letters and testimony, the trial court determined appellant has a “disorganized mind and compensates by setting up an oversimplified view of the world in which he is one of the good guys and ‘they’ are conspirators bent on mischief. As such, he would be and has been an easy target for anyone who pretends to support him in his efforts to combat the bad guys.” Trial court opinion, 11/12/85, at 3.

The trial court was clearly convinced that appellant was “suffering from a ‘mental illness’ as that term is used in the legislation, so that he no longer has the ability to ‘choose’ in either a knowledgeable or totally voluntary way.” Id. at 7. Although the trial court heard conflicting evidence concerning appellant’s mental condition, it found appellant “not equipped to deal with his financial affairs in even a minimal way, due to the disorganized and unrealistic way he views finances and world events. He is a target for designing persons and is liable to dissipate his assets, and requires protection of the Court.” Id. Upon thorough review of the record, we hold that the trial court acted within its sound discretion in finding that appellees proved appellant’s mental illness by clear and convincing evidence.

Appellant’s next argument is that the trial court erred in labeling a personality disorder a mental illness. This argument ignores the trial court’s finding that appellant is mentally ill as set forth in 20 Pa.C.S. § 5501. Trial court opinion, 11/12/85, at 7. Furthermore, this court has held:

We are not unduly troubled by the question of semantics. The purpose of the Incompetents’ Estates Act is preventative [sic] and protective in nature. Card’s Appeal, 177 Pa.Super. 502, 110 A.2d 856 [1955]. The following language of President Judge Baldridge in Refior’s Case, 160 Pa.Super. 305, 50 A.2d 523, 527 [1947], is particularly appropriate: “Whether an alleged incompetent is found to be mentally ‘confused,’ ‘defective,’ ‘feeble,’ or ‘weak’ is not vitally important. If, as here, it appears that one’s mind is so affected that as a consequence thereof he is liable to dissipate or lose his property and become the victim of designing persons, the court, if other requirements are met, may appoint [or refuse to remove] a guardian”.

In re Earnshaw, supra, 187 Pa.Super. at 129, 144 A.2d at 482-83.

The trial court properly found appellant’s mind to be so affected that he was “suffering from a significant impairment in his ability to cope,” thus making him liable to dissipate his assets and become the victim of designing persons. Trial court opinion, 11/12/85, at 7.

Appellant further argues that appellees did not meet their burden of proving by clear and convincing evidence that appellant was liable to dissipate his property or become the victim of designing persons. The trial court recognized that “a man may do what he pleases with his personal estate during his life. He may beggar himself and his family if he chooses to commit such an act of folly.” Bryden Estate, 211 Pa. 633, 636, 61 A. 250, 251 (1905). Trial court opinion, 11/12/85, at 6. However, the court found by clear and convincing evidence that appellant was not able to choose in a voluntary or knowledgeable manner, and in the event he dissipated his assets, he would not be doing so freely or voluntarily. Following an exhaustive review of the record, we agree.

Finally, appellant argues that the trial court erred by including the support of a political philosophy or organization within the ambit of the phrase “become the victim of designing persons.” The trial court stated:

It seems to us that the legislation is designed to protect one who has been peculiarly disabled by his or her mental makeup from resisting the exploitation of others. The evidence indicates that the exploitation has already begun, and that Lewis, because of his particular mental makeup, has succumbed to the blandishments of the LaRoach [sic] organization. The evidence further indicates that unless the Court intervenes, Lewis will continue to squander his admittedly substantial resources.

Id. We agree with the trial court that appellant’s mental illness has resulted in producing a condition that has made him a victim of the LaRouche organization.

We affirm the order of the trial court adjudicating appellant incompetent and appointing a financial institution as guardian.

BECK, J., filed a concurring opinion.

BECK, Judge,

concurring:

I join the opinion of the majority. I write separately in order to emphasize that a finding of incompetency under the Decedents, Estates, and Fiduciaries Code must be based upon a searching inquiry into the facts of the particular case before the court.

As the Pennsylvania Supreme Court has noted, a law “which empowers a court to declare an individual mentally incompetent and to place such individual’s business affairs in the hands of another is ‘a dangerous statute easily capable of abuse ... ’” Myers Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959) (citing Denner v. Beyer, 352 Pa. 386, 388, 42 A.2d 747, 748 (1945)). See generally Comment, Guardianship Incompetency Standard, 124 U.Pa.L.Rev. 1048 (1976). This danger of abuse is especially great where the alleged incompetent has given large sums of money to an organization which espouses a political ideology that is outside the mainstream. However, in the case sub judice, I find upon careful reflection sufficient evidence of record from which the trial court could have fairly concluded that appellant’s incompetency was established and that the donations or loans he made to the LaRouche organization were manifestations of that incompetency. If appellant had given or lent money to the Republican or Democratic parties or to a recognized charity under the same circumstances as existed in this case, I would also have concluded that the trial court did not err in finding him incompetent. I therefore conclude that the incompetency statute was not applied in a discriminatory manner and that the trial court’s order should be affirmed.

Appellant’s own testimony reveals a certain confusion and apathy regarding his financial affairs. For example, at a hearing on April 16, 1985, he was unable to explain why he had transferred $50,000 to a group affiliated with Lyndon LaRouche on April 4, 1985, and he did not remember whether this transfer represented a gift or a loan. N.T. April 16, 1985 at 48-50. Appellant also had difficulty adding figures and he was unable to count backward by threes. Appellee’s expert witness diagnosed appellant as suffering in part from an organic mental disorder which impaired his ability to calculate. N.T. June 12, 1985 at 37; July 29, 1985 at 51-54.

The record also supports the inference that appellant has already become the victim of designing persons. Appellant’s former roommate testified that during the fall of 1984, a representative of LaRouche often telephoned appellant two or three times a night to solicit money. N.T. June 12, 1985 at 5-6. At this time, appellant refused to make a donation; however, he became deeply involved in the La-Rouche organization in early 1985 after attending a series of lectures sponsored by the group. During this period, appellant told his brother that he was sleeping only two or three hours per night. N.T. June 11, 1985 at 83.

Between February 13, 1985 and April 4, 1985, appellant donated or loaned a total of $212,000 to the LaRouche organization. Although appellant assured his family that he would not give the organization any more money until he received his first interest payments on his loans, he changed his mind after visiting the group’s headquarters in Lees-burg, Virginia. N.T. April 20, 1985 at 13; June 11, 1985 at 199. On April 10, 1985, he attempted to wire an additional $75,000 to a LaRouche affiliate. It was at this point that his family filed a petition for the appointment of a guardian.

On June 11, 1985, appellant informed the trial court that he planned to move to Leesburg in order to work for the organization in return for what he described as a “nominal stipend.” N.T. June 11, 1985 at 69. He also said that he was not interested in finding out how much he would be paid prior to relocating. Id. at 71. Later that month, he was told by his father’s secretary that his mother had become severely depressed as a result of his actions; he reportedly responded, “[W]ell, someone had to be sacrificed for the cause and it might as well be her.” N.T. August 30, 1985 at 44. Furthermore, in January 1986, six months before the trial court issued its final order, appellant was convicted in federal court of assaulting in an airport an individual who had questioned LaRouche’s policies.

Finally, it is significant that even one of appellant’s own expert witnesses testified that appellant has a “mental disorder” and that “He’s more likely to be influenced, conned, if you will, than the average individual.” N.T. July 9, 1985 at 75-76.

In light of all the circumstances of this case, the trial court did not abuse its discretion by concluding that there is clear and convincing evidence that appellant suffers from a serious mental disturbance, that he is likely to dissipate his estate, and that he is not capable of making a knowing and voluntary decision to dissipate his estate because of his mental condition. Accordingly, I agree that the trial court acted properly when it appointed a guardian to manage appellant’s assets.

      . Rule 521. Notice to Attorney General of Challenge to Constitutionality of Statute
      (a) Notice. It shall be the duty of a party who draws in question the constitutionality of any statute in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate court, to give immediate notice in writing to the Attorney General of Pennsylvania of the existence of the question; together with a copy of the pleadings or other portion of the record raising the issue, and to file proof of service of such notice.
      (b) Status of Attorney General. The Attorney General may be heard on the question of the constitutionality of the statute involved without formal intervention. If the Attorney General files a brief concerning the question the Commonwealth shall thereafter be deemed to be an intervening party in the matter.

      . § 5501. Meaning of Incompetent
      "Incompetent" means a person who, because of infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety:
      (1) is unable to manage his property, or is liable to dissipate it or become the victim of designing persons; or
      (2) lacks sufficient capacity to make or communicate responsible decisions concerning his person.

      . Appellant suffered nightmares and became extremely withdrawn, "up tight” and nervous. He also began to espouse LaRouche philosophy even though he could not explain it. Reproduced record (hereinafter “R.”) at 402a-04a.

      . Appellant’s transfers to CDI
      February 13, 1985 $ 6,000.00
      February 21, 1985 6,000.00
      March 5, 1985 25.000. 00
      March 8, 1985 5,000.00
      March 20, 1985 100,000.00
      April 2, 1985 20.000. 00
      April 4, 1985 50,000.00
      $212,000.00
      R. at 118a-24a.

      . Appellant invested $80,000 in the American Walnut Corporation in 1981 and lost the entire amount. R. at 174a. Appellant lost over $23,000 in silver bullion in May, 1981. R. at 175a, 223a. Over a two month period in March, 1984, appellant lost roughly $52,000 in various stocks. R. at 178a-79a.

      . Appellant suffers from a schizophrenic affective disorder which renders him unable to appreciate reality as to relate to it in any way other than in an “inappropriate and disfunctional fashion.” R. at 453a-7-453a-8. Appellant suffers "delusions of persecution” and manifests symptoms of a “paranoid individual.” R. at 453a-10-453a-15. Because of this mental illness, appellant cannot objectively judge those who say that they share his common ideology thus making it very easy for appellant to get swept up in his colleagues ideas that are of a financial nature. R. at 453a-16.

      . Neither of appellant’s expert witnesses believed that appellant suffered from a mental illness. R. at 642a, 807a.

      . A. Backwards from a hundred by threes?
      Q. By threes.
      A. By threes. Ninety-seven, 94, 80 — 87. Eighty-three, 79, 60 — uhm, 69, 50 — how much longer do you want me to go?
      Q. All the way.
      A. Be here a long time.
      N.T. June 11, 1985 at 12.


author: KELLY, Judge: DEL SOLE, Judge,

text:
    529 A.2d 471
    Leon C. HARDY and Helen M. Hardy, Appellants, v. PENNOCK INSURANCE AGENCY, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1986.
    Filed July 22, 1987.

      Alan Kear, Philadelphia, for appellants.
    Before McEWEN, DEL SOLE and KELLY, JJ.
   KELLY, Judge:

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.

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:

[1] 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 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.
sjc sfs * * »[s *
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.

I.

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 ap-pellee’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.

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.

II.

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 court” as to this cause of action. 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 of court” as to this cause of action. The dismissal of Count III was a final and appealable order and may now be presented to this Court for consideration.

Count IV (in trespass) alleges the existence of unfair or deceptive acts or practices under the Unfair Insurance Practices Act, and/or the Pennsylvania Unfair Trade Practices and Consumer Protection Law. This claim is not present in Count I of appellants’ complaint. It is a separate and distinct cause of action based upon statutory law. Therefore, the dismissal of Count IV, like Count III, was a final and appealable order, and may now be presented to this Court for consideration.

ill.

We now address those issues properly before us on appeal. As to Count III, the court below held that appellants’ cause of action for punitive damages was improper. The court stated, “Pennsylvania law denies such a cause of action when sued for in insurance disputes.” (Trial Court Op. at 1). The trial court opinion cites Rodgers v. Nationwide Mutual Insurance Co., and D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., in support of this proposition. The court in D'Ambrosio and this Court in Rodgers, relying upon D'Ambrosio, held that the Unfair Insurance Practices Act could not be supplemented by a judicially-created cause of action. In essence, the court in D'Ambrosio opined that because the Unfair Insurance Practices Act was created by the legislature, judicial interference was not appropriate. Specifically, the court stated:

Our conclusion that the Unfair Insurance Practices Act serves adequately to deter bad faith conduct applies not only to appellant’s attempt to recover punitive damages but also to his attempt to recover damages for ‘emotional distress.’ An award of punitive damages unquestionably is a deterrent device, see Restatement (Second) of Torts § 908 (1965); Restatement (Second) of Contracts § 869 (Tent.Draft No. 14, March 1, 1979); one which is unnecessary in view of the present legislatively-created regulatory scheme. And in the vast majority of cases an award of emotional distress damages would accomplish no more than is already accomplished by the Unfair Insurance Practices Act.

D'Ambrosio, 431 A.2d at 970. (Emphasis added).

Because the court in D Ambrosio found that the Unfair Insurance Practices Act adequately covered the area of concern in such cases, it was determined that any form of judicial interference by the creation of a new cause of action would be unwarranted. However, the instant case is dissimilar in that Count III of appellants’ complaint did not merely raise the issue of punitive damages, such that supplementation of the Unfair Insurance Practices Act would be prohibited pursuant to the holding in D’Ambrosio, but referred to punitive damages only as a suggested remedy to their actual claim — an action in trespass for misrepresentation, fraud and deceit. Whether appellants would be permitted to supplement their action under the Unfair Insurance Practices Act with such an existing common law action was not specifically addressed in the majority opinion of D’Ambrosio, but was addressed in the recent case of Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986). D'Ambrosio must be read in conjunction with Pekular in order to achieve an understanding of this area of the law.

In Pekular, authored by President Judge Cirillo, this Court held that even where the Unfair Insurance Practices Act applies, insureds may raise a common law cause of action against the insurer for fraud and deceit. In support of this contention, the court in Pekular relied on Dozor Agency, Inc. v. Rosenberg, 403 Pa. 237, 169 A.2d 771 (1961). In Dozor, our Supreme Court held that the precursor of the Unfair Insurance Practices Act, the Unfair Practices Act of 1947, did not provide the exclusive remedy in cases involving alleged fraudulent conduct on the part of an insurer. The Court in Dozor stated:

We are of the opinion that the Act was never intended to and does not vest exclusive jurisdiction in the Insurance Commissioner in cases such as the present and thus oust the jurisdiction of a Court of Equity which for many years has possessed and exercised jurisdiction in cases arising out of facts on all fours with the instant case.

Dozor, 169 A.2d at 774 cited in Pekular, 513 A.2d at 430. (Emphasis in original).

With the foundation laid in Dozor expressly denying exclusivity of such claims in the Department of Insurance, this Court in Pekular continued:

Finally, Eich and State Farm contend that, in any event, the allegations contained in the Pekulars’ complaint do not rise to the level of fraud. After careful analysis of the allegations in the Pekulars’ complaint, we find this argument to be without merit. The Pekulars have alleged that they have justifiably relied to their detriment upon allegedly intentional misrepresentations made by their insurance agent.

Pekular, 513 A.2d at 431. Similarly in the instant case, appellants set forth in Count III of their original complaint the following:

22. The conduct of the Defendant constitutes misrepresentation, fraud and deceit in that, inter alia, Defendant knowingly and willfully misrepresented to the Plaintiffs the nature, extent, terms, conditions and duration of the coverage for which Plaintiffs were paying premiums; knowingly and willfully misrepresented to the Plaintiffs the payment terms and conditions of said coverage, and/or its extension; knowingly and willfully misrepresented the terms and conditions of the policy with regard to cancellation and/or non-renewal; knowingly and willfully refused and failed to comply with the laws of the Commonwealth of Pennsylvania and the regulations of the Insurance Department of the Commonwealth of Pennsylvania with reference to cancellation and/or non-renewal of insurance coverage; knowingly and willfully refused and failed to comply with the terms and conditions of the subject insurance policy, the statutes of the Commonwealth of Pennsylvania, and the Regulations of the Insurance Department of the Commonwealth of Pennsylvania; and otherwise violated their fiduciary, contractual and statutory duties in dealing with the Plaintiffs.
23. Plaintiffs justifiably relied upon the Defendants’ misrepresentation, fraud and deceit as described aforesaid, which caused the damages to Plaintiffs described in paragraphs eight (8) and eleven (11) hereof, all of which were in the contemplation of Defendant at all times pertinent hereto, for which Plaintiff seeks the compensatory damages described in said paragraphs eight (8) and eleven (11), and punitive damages.

(Plaintiffs’ Complaint at pp. 11-12).

As did the Pekulars, appellants herein have alleged that they justifiably relied to their detriment upon allegedly intentional misrepresentations made by their insurance agent. It would follow under Pekular that regardless of the application of the Unfair Insurance Practices Act, the insureds may, in addition, introduce a separate common law cause of action. In order to dispel any possible conflict with our Supreme Court’s holding in D ’Ambrosio that an insurer could only be subject to sanctions authorized by the Unfair Insurance Practices Act, our Court in Pekular clarified:

In D ’Ambrosio, the Court expressly refused to supplement the UIPA with a judicially created cause of action which had never before been recognized by Pennsylvania courts. However, we do not read D Ambrosio to preclude existing common law remedies such as fraud and deceit.

Pekular, 513 A.2d at 431. (Emphasis supplied). Based on our holding in Pekular, appellants must be permitted to present a separate cause of action in common law fraud and deceit. We hold that the trial court erred in dismissing Count III of appellants’ complaint.

As to Count IV, the lower court, in its opinion of June 9, 1986, DiBona, J., stated:

Finally, Count IV of the Complaint is brought under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S.A. § 201.2(4). Plaintiff relies upon Deetz v. Nationwide Mutual Ins. Co., 102 Dauph.Co., 374 (1981). This Court has not interpreted the above cited statute as providing for private attorney’s general causes of action.
Accordingly, Count IV of plaintiff’s complaint was properly stricken.

In light of the manner in which the trial court addressed this count, we cannot agree with its holding. Our reasoning is as follows.

First, the language of the trial court opinion is misleading. Count IV, paragraph 25 of appellants’ complaint reads as follows:

25. The conduct of the Defendant in refusing to pay Plaintiffs’ claim under the subject policy and in failing to provide proper and adequate insurance coverage as described aforesaid constitutes unfair or deceptive acts or practices within the meaning of Section 5 of the Unfair Insurance Practices Act, 40 Pa.Stat.Ann. Section 1171.5 (Purdon’s Supplement 1981), and/or constitutes unfair or deceptive acts or practices within the meaning of the Pennsylvania Unfair Trade Practices and Consumer Protection Law 73 Pa.Stat.Ann. Section 201.2(4) (Purdon’s Supplement 1981), which, under Section 9.2 of the latter Act, entitles Plaintiffs to recover up to three times the actual damages caused by Defendant’s unlawful conduct.

(Plaintiffs’ Complaint at pp. 13-14). (Emphasis added). The effect of striking this count in its entirety is to disallow institution of an action under either the Unfair Insurance Practices Act or the Unfair Trade Practices and Consumer Protection Law. However, the opinion of the trial court refers only to the Unfair Trade Practices and Consumer Protection Law and then dismisses plaintiffs’ Count IV. To state that Count IV was based on the Unfair Trade Practices and Consumer Protection Law alone is an incomplete and inaccurate assessment of the express intention of the appellants as set forth in Count IV of their complaint. It is the express language of Count IV and the effect of the trial court order dismissing that count in its entirety that we must focus on and not merely the language of the opinion itself.

Secondly, while we would admit that the effect of this part of the trial court’s opinion correctly prohibited such a cause of action under the Unfair Insurance Practices Act, as raised in Count IV, we disagree with the dismissal of this count regarding the existence of a cause of action under the Unfair Trade Practices and Consumer Protection Law.

A cause of action initiated under the Unfair Insurance Practices Act is not an action properly within our jurisdiction. These statutory provisions are enforced by the Insurance Commissioner of the Commonwealth who is empowered to “examine and investigate the affairs of every person in this State” to determine whether the Unfair Insurance Practices Act has been violated. 40 P.S. § 1171.-7. Pekular, 513 A.2d at 429-30. Nor does the delegation to the insurance commissioner of authority under the Unfair Insurance Practices Act violate an insurer’s due process rights. J.C. Penney Cas. Ins. Co. v. Com. Dept. of Ins., 43 Pa.Cmwlth. 360, 402 A.2d 558 (1979).

In J. C. Penney, Penney had issued a standard “renters” policy to William and Deborah Prindle. Within a period of nineteen months, the Prindles suffered two theft losses. Following reimbursement to the insureds for the losses, the insurer notified the Prindles that due to these losses their policy would not be renewed.

The factual scenario as set forth in the opinion continued as follows:

The Prindles, pursuant to Section 5(a)(9)(iv) of the Act, 40 P.S. § 1171.-5(a)(9)(iv), requested the Department of Insurance (Department) to review Penney’s action. The Department determined that there was reason to believe Penney had violated the Act, and a hearing was therefore scheduled pursuant to Section 8 of the Act, 40 P.S. § 1171.8.2 An assistant attorney general attached to the Department was assigned by the Commissioner to act as hearing examiner. Another assistant attorney general attached to the same office was assigned to prosecute the case on behalf of the Department.

J.C. Penney, 402 A.2d at 559. (Footnote omitted).

Penney exemplifies the administrative procedure to be followed where an action is initiated under the Unfair Insurance Practices Act. In the instant case, appellants sought statutory relief before the courts rather than requesting the Department of Insurance to review the action to determine whether a hearing was warranted. This act was contrary to D’Ambrosio, supra, and the express administrative procedure as set forth in Penney. Therefore, we hold that the court’s dismissal of Count IV of appellants’ complaint was proper with regard to the Unfair Insurance Practices Act.

As for the application of the Unfair Trade Practices and Consumer Protection Law, this Court recently set forth its analysis in Pekular, supra, in which we found that an insured could maintain a private cause of action under the Unfair Trade Practices and Consumer Protection Law even though allegations in the complaint fell within the purview of acts and practices prohibited by the Unfair Insurance Practices Act. As part of this analysis, the Court in Pekular specifically stated:

We see no inconsistency between the UIPA [Unfair Insurance Practices Act] providing for administrative investigation and an imposition of limited penalties and the CPL [Unfair Trade Practices and Consumer Protection Law] providing a means by which a consumer may privately seek compensation for wrongs allegedly suffered. Our conclusion that there is no inherent irreconcilable conflict is supported by the fact that the UIPA contains no provision either stating or implying that the power vested in the Insurance Commissioner represents the exclusive means by which an insurer’s unfair or deceptive acts are to be penalized or that the insured is precluded from seeking private compensation for damages incurred, Further, as noted previously, we are mindful of the fact that our Legislature did not see fit to exclude insurers, insurance agents or insurance transactions form the broad scope of CPL regulation in either the original enactment of the CPL in 1968 or, more importantly, in its subsequent reenactment in 1976, a full two years after the enactment of the UIPA.

Pekular, 513 A.2d at 434. Consequently, we find it appropriate to follow the findings set forth in Pekular, and hold that the Unfair Insurance Practices Act, wherein penalties are properly enforced by the Insurance Commissioner, does not represent the sole and exclusive source of statutory redress of alleged unfair or deceptive acts of insurers and their agents. Specifically, these acts may be redressed in the courts of our Commonwealth under the Unfair Trade Practices and Consumer Protection Law as well as by administrative hearing under the Unfair Insurance Practices Act. Based on the foregoing, we therefore affirm the trial court’s dismissal of Count IV with respect to the Unfair Insurance Practices Act, but reverse that part of the dismissal with respect to the Unfair Trade Practices and Consumer Protection Law and find that a private action may be so initiated.

CONCLUSION

We hold that appellants are not “out of court” as to the cause of action presented in Count II of their complaint. For that reason, the order dismissing Count II is interlocutory and not appealable. Therefore, the appeal with regard to Count II of appellant’s complaint is hereby quashed.

However, we hold that appellants are “out of court” as to the causes of action presented in Counts III and IV of their complaint. Since the trial court order dismissing Counts III and IV is final and appealable, it is properly before this Court for appellate review. We find on the basis of this Court’s holding in Pekular, supra, that the trial court has improperly dismissed appellants’ common law cause of action in Count III and appellants’ cause of action pursuant to the Unfair Trade Practices and Consumer Protection Law in Count IV. Therefore, the order of the trial court with respect to Count III is reversed and with respect to Count IV is affirmed in part, and reversed in part as aforementioned. Jurisdiction is relinquished.

DEL SOLE, J., filed a concurring statement.

DEL SOLE, Judge,

concurring:

I join the analysis of the majority in its opinion. I write separately however to express my disagreement with the existing case law relative to what constitutes a “final and appealable order”.

First, I hasten to add that I believe that the majority’s analysis of counts two, three and four and the dismissal thereof is correct under existing case law. I believe that the existing case law should be re-examined and the concept “out of court” should be reassessed.

An order dismissing various counts in a multi-count complaint, or an order refusing to allow the amendment of an answer, new matter, or counterclaim, does not put a litigant out of court. Rather, it postpones the litigants right to have that issue revie wed until a later date.

I would point out that I believe that the doctrine contained in Praisner v. Stocker, 313 Pa.Super. 322, 459 A.2d 1255 (1983) and Cloverleaf Development Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985) should be re-examined.

In my view the better practice would be to disallow appeals from any order that occurs during the course of litigation at the trial level until a party has been totally dismissed from the case or the case is ended for all purposes at the trial court level. The only exceptions to this rule should be those enumerated in Pa.R.A.P. 311 or where the postponement of review would cause the claimed right to be irrevocably lost. See: Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). The present status of the law in this area is confusing to say the least. Further, our appellate courts have held that the failure to appeal one of these misnomered “final and appealable orders” results in a loss of the right to have the trial court action reviewed if not immediately appealed. Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986). See: Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987) (dissenting Opinion by Del Sole, J.). This in and of itself invites cautious counsel, when faced with the difficult question of determining whether or not an order is “appeal-able”, to take the appeal, delay the litigation at the trial level and further burden the appellate courts of Pennsylvania.

Further, the application of the rule of “final and appeal-able” is inconsistent. As an example, an order striking the affirmative defense raised in a new matter which alleges forgery of a document would be “final and appealable” for interlocutory appeal purposes. However, a trial court’s ruling during trial disallowing expert testimony to establish the fact of that forgery is not “final and appealable”. In either event the result to the litigant is the same and in both cases the review of the respective orders can be postponed until the conclusion of the actions at the trial court level. Further support for this view is gained by the recent decision of the Pennsylvania Supreme Court in Bruno v. Elitzky, 515 Pa. -, 526 A.2d 781 (1987) where that court, speaking through Mr. Justice Papadakos, held that the dismissal of new matter as a result of a sanction order entered pursuant to the discovery rules is not a final and appealable order, but rather an interlocutory one, the review of which can await the final outcome of the litigation.

It must be pointed out that the concept that a litigant is “out of court” with regard to a particular issue is a misnomer. Actually, the litigant is not out of court but in fact still “in court” merely having the right to review of the subject issue postponed.

Believing as I do that a definition of what is an “appeal-able nonlitigation ending order” is difficult and creates traps to litigants and their lawyers alike, that area of the law should be re-evaluated and changed. However, I conclude that the majority in this case has properly analyzed the existing case law, and therefore I am constrained to join the opinion of my learned colleague Judge Kelly.

      . Count I, paragraph 15 of appellants’ complaint reads as follows: Defendant, Pennock, in direct violation of its agreement with Plaintiffs and contrary to its course of conduct and dealing in handling Plaintiffs’ fire and/or hazard insurance needs, failed and/or neglected to keep in effect for Plaintiffs, a proper and adequate fire and/or hazard insurance policy and in concert with or as the agent, servant, workman and/or employee of Great Southwest, acting within the course and scope of its employment, deliberately, and without privilege, cause or justification, prevented, and/or refused the continuation of the aforesaid Great Southwest Insurance policy as described more fully in paragraphs twenty (20), twenty-two (22) and twenty-five (25).
      (Emphasis added).

      . 344 Pa.Super. 311, 496 A.2d 811 (1985).

      . 494 Pa. 501, 431 A.2d 966 (1981).

      . The approach of supplementing the Unfair Insurance Practices Act with an existing common law action of fraud and deceit was raised in D’Ambrosio, supra, by the insightful concurring opinion of then Justice Nix, now Chief Justice of the Supreme Court of Pennsylvania, in which he stated in part:
      I join the majority opinion but merely wish to briefly respond to the objection raised by the dissent. In addition to the deterrent provisions of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, 40 P.S. §§ 1171.9 and 1171.11 (Supp.1980), appellant was also in a position to seek relief under a theory of breach of contract, or by pursuing the common law tort of deceit. (Citations omitted).

        DAmbrosio, 431 A.2d at 973-4.

      . The Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq., provides in section 9.2(a) as follows:
      § 201-9.2 Private actions
      (a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act,1 may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.
      (Footnote omitted).