author: ROWLEY, Judge: BECK, Judge,

text:
    583 A.2d 1180
    G. Brinton MOTHERAL, III, Appellant, v. Ann BURKHART, an individual, Deborah Lesko, an individual, and Kratzenberg, Shields and Lesko, P.C., a professional corporation. (Two Cases)
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Dec. 14, 1990.

      Thomas A. McDonnell, Pittsburgh, for appellant.
    Barbara J. Shah, Bethel Park, for Burkhart, appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   ROWLEY, Judge:

During the course of a bitter custody dispute between appellant G. Brinton Motheral and his wife, Gretchen Burk-hart, from whom he is now divorced, appellant allegedly threatened his wife’s mother, Ann Burkhart. The incident resulted in the filing of criminal charges against appellant, all of which were later dropped or nolle pressed. As a result of the filing of the criminal charges, which he contends were unfounded, appellant instituted the present civil action. In a multi-count complaint he asserted claims of malicious prosecution and intentional infliction of emotional distress against appellees Ann Burkhart and Deborah Lesko, who was Gretchen Burkhart’s attorney in the divorce action, as well as claims of malicious prosecution and negligence against appellee Kratzenberg, Shields and Lesko, P.C., Lesko’s law firm. Appellant filed these appeals to challenge the trial court’s dismissal of five of the six counts in his complaint.

Before considering the merits of appellant’s claims, we are required to determine whether the orders dismissing some but not all counts of the multi-count complaint are final and appealable. The case has been certified for en bane consideration of this issue, which was previously considered by the Court en banc in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1988).

In order to understand the nature of appellant’s claims, we set forth in greater detail the factual and procedural history of the case. On February 5, 1988, Ann Burkhart was in her daughter’s automobile, waiting for her daughter and granddaughter (appellant’s wife and daughter) to return from a doctor’s appointment, when, she asserted, appellant appeared and threatened to kill her. She reported the incident to the police. As a result, appellant was arrested and charged with simple assault, 18 Pa.C.S. § 2701, terroristic threats, 18 Pa.C.S. § 2706, harassment, 18 Pa.C.S. § 2709, and intimidation of a witness, 18 Pa.C.S. § 4952. At a preliminary hearing, the magistrate dropped the charges of simple assault and intimidation of a witness. Appellant was bound over for trial on the charges of terroristic threats and harassment, but these charges were subsequently nolle pressed by the district attorney.

On June 1, 1988, appellant filed a six-count complaint against appellees. In Counts I and III of the complaint he alleged malicious prosecution on the part of Burkhart and Lesko, respectively. In Counts II and IV he asserted claims of intentional infliction of emotional distress against Burk-hart and Lesko, respectively. Counts V and VI asserted claims of malicious prosecution and negligence, respectively, against the law firm. At the heart of appellant’s claims against Burkhart was the allegation that she knowingly made false accusations in order to procure the filing of criminal charges against him and thereby “to influence other litigation [i.e., the custody proceeding] ... and ... to intimidate, harass, embarrass and otherwise cause harm to” him. As to Lesko, appellant asserted that in an attempt to influence the custody proceeding she encouraged the police to file charges against him even though she knew or should have known that Burkhart’s allegations were untrue. Appellant sought to hold the law firm liable for Lesko’s allegedly tortious actions on the theories of respondeat superior and negligent supervision.

Burkhart filed preliminary objections in the nature of demurrers to Counts I and II, as well as a motion to strike and a motion for a more specific pleading. Lesko filed preliminary objections in the nature of demurrers to Counts III and IV, along with a motion to strike paragraphs 32 through 36 of Count III. The law firm filed preliminary objections in the nature of demurrers to Counts V and VI and a motion to strike paragraph 56 of Count V.

On August 23, 1988, after argument on the preliminary objections, the trial court entered an order sustaining Burk-hart’s preliminary objection in the nature of a demurrer to Count II and dismissing that count. The preliminary objection in the nature of a demurrer to Count I was overruled. In addition, the trial court sustained Lesko’s preliminary objection in the nature of a demurrer to Count IV and granted her motion for a more specific pleading to Count III, granting leave to appellant to amend Count III. The trial court also sustained the law firm’s preliminary objections in the nature of demurrers to Counts V and VI and dismissed those counts. From this order appellant filed an appeal that has been docketed in this Court at No. 1378 Pittsburgh 1988.

Pursuant to the trial court’s order, appellant filed an amended complaint consisting only of Count III, into which he had incorporated paragraphs 1 through 30 (Counts I and II) and paragraphs 35 through 42 of the original complaint. Lesko then filed preliminary objections to the amended complaint in the nature of a demurrer to Count III and a motion to strike paragraphs 22 through 30. In an order entered October 28, 1988, the trial court sustained Lesko’s preliminary objections and dismissed Count III of the amended complaint. Appellant’s appeal of the order was docketed in this Court at No. 1824 Pittsburgh 1988. The two appeals have been consolidated for our review.

I. APPEALABILITY

A.

The Judicial Code provides that this Court “shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas____” Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, 42 Pa.C.S. § 742 (emphasis added). Pursuant to the Rules of Appellate Procedure promulgated by our Supreme Court, an appeal may be taken as of right (except by the Commonwealth, which may appeal in criminal matters only in the circumstances provided by law) from any final order of the trial court, and such an appeal, if desired, shall be taken by filing a notice of appeal within thirty (30) days after the entry of the order from which the appeal is taken. Pa.R. A.P. 341(a), (c), 902, 903(a); see also Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 533 A.2d 998 (1987).

By legislative and judicial mandate, therefore, this Court is required to determine in each case whether the order appealed from is final. Indeed, it is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). The purpose of this rule is to preclude “piecemeal determinations and the consequent protraction of litigation.” Sweener v. First Baptist Church, 516 Pa. at 538, 533 A.2d at 1000 [quoting Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954)]; Fried v. Fried, 509 Pa. at 97, 501 A.2d at 215 (quoting same). Because the question of appealability implicates the jurisdiction of the appellate court, a non-waivable matter, the failure of the parties to raise such an issue does not preclude this Court from doing so sua sponte. Fried v. Fried, 509 Pa. at 91, 501 A.2d at 212.

Our Supreme Court has “variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court.’ ” Id., 509 Pa. at 93-94, 501 A.2d at 213 [quoting T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977) ] (additional citations omitted). Whether an order is final and appealable is a judicial determination which cannot be made without an examination of the order’s practical ramifications. Pennsylvania Turnpike Commission v. Atlantic Richfield Company, 482 Pa. 615, 618, 394 A.2d 491, 493 (1978) [quoting Bell v. Beneficial Consumer Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975) ]. In making this determination, we are guided by the Supreme Court’s statement that

[a] pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.

Sweener v. First Baptist Church, 516 Pa. at 539, 533 A.2d at 1000.

In the present case the trial court dismissed five counts of a six-count complaint. “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, 313 Pa.Super. at 337, 459 A.2d at 1258. The same is true of an order granting partial summary judgment. Id. With respect to appellees Lesko and the law firm, however, the finality of the orders in question is nevertheless apparent. In its order of August 23, 1988, the trial court dismissed both counts (V and VI) against the law firm, as well as the counts alleging intentional infliction of emotional distress against Burkhart (II) and Lesko (IV). In its order of October 28, 1988, the court dismissed the remaining count (III, alleging malicious prosecution) against Lesko. Therefore, appellant is “out of court” with respect to Lesko and the law firm, as all counts against them have been dismissed. As suggested by the Supreme Court’s observation in Sweener v. First Baptist Church, quoted above, the dismissal of a complaint as to one of several defendants is a final and appealable order. United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985). Accordingly, the appeals from the order of October 23, 1988 and from the August 23, 1988 order insofar as it dismissed the counts against Lesko and the law firm are properly before us.

With respect to the counts involving Burkhart, the situation is more complicated. Count II, alleging intentional infliction of emotional distress, has been dismissed; Count I, alleging malicious prosecution, remains. In Praisner v. Stocker, supra, this Court, considering the finality question in the context of an order entering summary judgment on two counts of a three-count complaint, approached the problem as follows:

Where separate and distinct causes of action have been joined under permissive joinder standards of Pa.R.C.P. 1020(a) or Pa.R.C.P. 1044(a), the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to state alternate theories for recovery on the same cause of action. In the former situation the summary judgment has terminated litigation upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff can, nevertheless, proceed to a determination on the underlying cause of action____ In [the latter situation] the plaintiff is not out of court when one of several counts has been dismissed, and it is procedurally preferable to delay appellate review until the entire action has been determined.

Id. 313 Pa.Super. at 341-42, 459 A.2d at 1260 (citations omitted). In other words, if the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable.

As noted earlier, a pivotal factor to consider in analyzing whether an order is final is whether the order has put the aggrieved plaintiff out of court, “on all theories of recovery asserted against a given defendant for a given loss.” Sweener v. First Baptist Church, 516 Pa. at 539, 533 A.2d at 1000 (emphasis added). Praisner itself emphasizes the importance of the measure of loss:

Thus, the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided. Similarly, there is no final order where a count averring negligence has been dismissed but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts.

313 Pa.Super. at 341, 459 A.2d at 1260 (citation omitted; emphasis added). Thus, a plaintiff seeking to recover monies allegedly owed for services rendered—the “given loss” -—may attempt to prove that the defendant breached an express contract or, if no express contract can be proven, that compensation is owed on the basis of quantum meruit [“as much as he deserves,” Black’s Law Dictionary 1119 (5th ed. 1979) ]. If the first of these theories is foreclosed by the trial court, the plaintiff is still able to seek compensation, via the second theory, for the loss suffered. Similarly, a plaintiff seeking compensation for an injury caused by a defective product may argue that the defendant was negligent or, alternatively, that the defendant was strictly liable pursuant to Section 402A of the Restatement (Second) of Torts. Should the first of these theories of recovery be dismissed, the action for damages will continue with the plaintiff relying on the second theory. In neither of these cases would the plaintiff be allowed to recover on both theories; in each case, the plaintiff has merely proffered alternative theories for the recovery of a given loss.

The significance of the plaintiff’s loss was recently noted by this Court in Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990). In that case the plaintiff had filed a two-count complaint alleging defamation and wrongful suspension, and the latter count was dismissed. The order dismissing the claim for wrongful suspension was final and appealable, this Court held, because “[t]hese claims request different relief for different harms____” Id., 393 Pa.Superior Ct. at 121, 573 A.2d at 1118.

As this Court en bane has observed in Garofolo v. Shah, 400 Pa.Super. 456, 460, 583 A.2d 1205, 1207, (1990), and Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa.Super. 408, 415-417, 583 A.2d 1180, 1184 (1990), while an analysis of the relief requested will lead to resolution of the finality issue in many cases, other cases will require the consideration of additional factors. The analysis required in such cases will be similar to that required of our courts in many analogous situations, as when, for example, we review a decree of equitable distribution in light of the eleven factors enumerated by the legislature, 23 P.S. § 401, or an award of alimony in light of the seventeen factors similarly enumerated, 23 P.S. § 501. See also John M. v. Paula T, 524 Pa. 306, 571 A.2d 1380 (1990) (in determining whether there is “good cause” for court-ordered blood tests under Pa.R.C.P. 4010(a), the court balances interests); Commonwealth v. Dollman, 518 Pa. 86, 541 A.2d 319 (1988) (in deciding whether to admit potentially inflammatory evidence, the trial court is required to balance alleged prejudicial effect against probative value); Hutchison v. Luddy, 398 Pa.Super. 505, 581 A.2d 578 (1990) (in deciding whether to grant a motion to seal records or proceedings under the common law approach, the court weighs factors for and against access).

Before addressing the finality of the orders appealed from in the present case, we note, finally, that additional guidance is provided by the numerous cases that have followed the rationale of Praisner. See, e.g., Hineline v. Stroudsburg Electric Supply, 384 Pa.Super. 537, 559 A.2d 566 (1989) (order dismissing counts of wrongful discharge and intentional interference with contractual relations was final, where claim for breach of fiduciary duty remained); Danko Development Corporation v. Econocast Corporation, 369 Pa.Super. 120, 534 A.2d 1108 (1987) (order dismissing claim based on implied warranty of habitability was not final, where claims of negligence, breach of contract, and misrepresentation remained); Gabriel v. O’Hara, 368 Pa. Super. 383, 534 A.2d 488 (1987) (where plaintiffs’ complaint alleged breach of contract and warranty and fraudulent misrepresentation, order denying petition to add claim for violation of Unfair Trade Practices and Consumer Protection Law (UTPCPL) was final); Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 529 A.2d 471 (1989) (where claim of breach of agreement to provide insurance remained, order was not final insofar as it dismissed claim for “negligent breach of contract,” but was final insofar as it dismissed claims of misrepresentation, fraud, and deceit and claims based on alleged violations of Unfair Insurance Practices Act and/or UTPCPL); Newman v. Thom, 359 Pa.Super. 274, 518 A.2d 1231 (1986) (order granting partial summary judgment to defendants on plaintiffs’ claim for retaliatory discharge was final even though other claims, including malicious investigation of plaintiffs’ private affairs, remained); Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986) (order dismissing plaintiffs’ own claim for negligent infliction of emotional distress was final, even though executor could still proceed on estate’s medical malpractice claim); Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984), rev’d on other grounds, 510 Pa. 213, 507 A.2d 351 (1986) (counts of libel, involving letters to certain individuals, and slander, involving statements to other individuals, set forth separate causes of action); Ellis v. Sherman, 330 Pa.Super. 42, 478 A.2d 1339 (1984), aff'd, 512 Pa. 14, 515 A.2d 1327 (1986) (order dismissing claim for wrongful life brought on child’s behalf was final, where claims for negligence and breach of contract brought on parents’ behalf remained).

The finality of an order that dismisses a claim for intentional infliction of emotional distress but leaves the plaintiff free to proceed on a claim for malicious prosecution (or vice versa) is an issue that has not yet been addressed by this Court. In Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 565 A.2d 1170 (1989), this Court held that an order dismissing some but not all of the plaintiff’s claims, including those for intentional infliction of emotional distress, intentional exposure to radiation, and wrongful discharge, was final. The remaining claims were not specified, however. Id., 388 Pa.Superior Ct. at 404 n. 1, 565 A.2d at 1171 n. 1.

In Ganassi v. Buchanan Ingersoll, 373 Pa.Super. 9, 540 A.2d 272 (1988), an order dismissing claims of defamation, libel, and invasion of privacy (false light) was held to be final, even though plaintiffs remained in court on claims of conspiracy, fraud and deceit, breach of contract, interference with prospective contractual relations, and intentional infliction of emotional distress. This Court stated without discussion that the complaint stated separate causes of action. Id., 373 Pa.Superior Ct. at 12 n. 2, 540 A.2d at 274 n. 2.

In Winterhalter v. West Penn Power Company, 355 Pa.Super. 17, 512 A.2d 1187 (1986), the plaintiffs filed a complaint demanding compensation for damages to their property by the defendant’s employees and, on behalf of their minor daughter, for the employees’ intentional infliction of emotional distress during the same incident. This Court held, again without discussion, that the complaint stated separate causes of action and that the order of the trial court striking plaintiffs’ allegation of intentional infliction of emotional distress was therefore final. Id., 355 Pa.Superior Ct. at 21 n. 3, 512 A.2d at 1189 n. 3.

In Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985), the trial court dismissed plaintiffs’ claims of wrongful withholding of funds, wrongful interference in negotiations, and intentional infliction of emotional distress, leaving them in court on their claim for breach of contract. This Court held that the order was not final insofar as it dismissed the first of these claims but was final insofar as it dismissed the second and third, which stated separate causes of action. Id,, 347 Pa.Superior Ct. at 81-82, 85, 500 A.2d at 167, 168. The alleged acts of the defendants which formed the basis of the wrongful interference claim were not the same as those upon which plaintiffs based their claim of intentional infliction of emotional distress.

There is even less case law discussing malicious prosecution in a Praisner context. In Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985), the trial court had dismissed plaintiffs’ claim for malicious prosecution on the ground that it was barred by the statute of limitations. A claim for damages resulting from an alleged assault and battery remained in the case. This Court held that the trial court’s order was a final determination of the cause of action for malicious prosecution. Id., 341 Pa.Superior Ct. at 541 n. 4, 491 A.2d 1389 n. 4, 491 A.2d 1389 n. 4. In addition, in Robinson v. Robinson, 362 Pa.Super. 568, 525 A.2d 367 (1987), appeal dismissed, 518 Pa. 63, 540 A.2d 529 (1988), an order denying the plaintiff’s petition to amend a complaint to include a count for wrongful use of civil proceedings, a tort similar to malicious prosecution, was held to be final, where the existing counts were for conversion and defamation. Id., 362 Pa.Superior Ct. at 573, 525 A.2d at 369-70.

B.

We turn, then, to the facts of the present case. In order to prevail on a claim of malicious prosecution, the plaintiff must show that the defendant maliciously instituted proceedings against the plaintiff, that the defendant did not have probable cause to institute the proceedings, and that the proceedings terminated in favor of the plaintiff. Kelley v. Local Union 249, 518 Pa. 517, 520-21, 544 A.2d 940, 941 (1988). In Count I of his complaint, appellant asserted that Burkhart caused a criminal complaint to be issued against him by making accusations that were false and unsupported by probable cause, that she did so maliciously and with the intent to cause him harm and to influence other litigation, and that the proceedings terminated in his favor. He also maintained that she “has, in the past, engaged in similar types of conduct and perceivably will continue to engage in said conduct in the future.” As a result of Burkhart’s actions, appellant alleged, he suffered humiliation, embarrassment, incarceration, severe emotional and physical distress, severe damage to his business reputation and his reputation in the community, and great financial expense in the form of health care, both physical and mental, and litigation costs. Burkhart’s actions, appellant asserted, “constitute[d] outrageous conduct.” He made a demand for damages in excess of $25,000.00, plus punitive damages and interest.

To prevail on a claim of intentional infliction of emotional distress, such as that raised in Count II of appellant’s complaint, the plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally or recklessly caused the plaintiff severe emotional distress. Restatement (Second) of Torts § 46. Comment d of § 46 provides guidance as to what constitutes extreme and outrageous conduct:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46, comment d, quoted in Field v. Philadelphia Electric Company; 388 Pa.Super. at 428, 565 A.2d at 1183-84. It is for the court to determine initially whether the defendant’s conduct can be regarded as so extreme and outrageous as to permit recovery. Dawson v. Zayre Department Stores, 346 Pa.Super. 357, 359, 499 A.2d 648, 649 (1985). Where reasonable persons may differ, it is for the jury to determine whether the conduct is sufficiently extreme and outrageous so as to result in liability. Restatement (Second) of Torts § 46, comment h. Although our Supreme Court has “[left] to another day the question of the viability of section 46 in this Commonwealth,” Kazatsky v. King David Memorial Park, 515 Pa. 183, 185, 527 A.2d 988, 989 (1987), this Court has recognized the existence of a cause of action based on intentional infliction of emotional distress, Field v. Philadelphia Electric Company, supra; Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984).

As the basis for his claim of intentional infliction of emotional distress against Burkhart, set forth in Count II of the complaint, appellant incorporated the allegations concerning malicious prosecution stated in Count I and averred that Burkhart had also encouraged unknown persons to telephone his friends and neighbors and accuse him of other unspecified crimes. Burkhart’s intent, he maintained, was to cause him emotional distress, inconvenience, embarrassment, humiliation, and injury to his business reputation. Appellant asserted that as a result of Burkhart’s conduct he suffered sleeplessness, nervousness, irritability, nausea, and severe emotional distress, all of which necessitated continuing treatment by health care professionals. As in Count I, he requested damages in the amount of $25,000.00, plus punitive damages and interest.

In determining whether the portion of the August 23, 1988 order dismissing Count II was final and appealable, we focus upon the loss or losses for which appellant, in Counts I and II, sought recovery. Because appellant’s allegations in this regard, as well as in regard to Burkhart’s actions, are general in nature, we are unable to perceive any significant difference between the losses described in Count I and those described in Count II. To the contrary, it is apparent that the harm alleged in both counts is substantially the same, namely, humiliation and embarrassment, injury to reputation, and physical and emotional distress. Moreover, appellant’s reference in Count I to “similar types of conduct” that Burkhart had engaged in in the past and was likely to repeat in the future could reasonably be read to include the conduct complained of in Count II. This interpretation is strengthened by appellant’s reference in Count I to the “outrageous” nature of Burkhart’s conduct. On the basis of the facts discernible in this case, therefore, we conclude that appellant has not requested “different relief for different harms” but has instead sought recovery for “a given loss.” Accordingly, we hold that the trial court’s order of August 23, 1988, insofar as it dismissed Count II of appellant’s complaint, was interlocutory rather than final and that appellant’s appeal therefrom must be quashed.

II. COUNTS III AND IV: APPELLEE LESKO

We turn next to the merits of appellant’s appeal from the orders dismissing Counts III through VI of his complaint. In doing so, we are mindful of our scope of review as set forth in Field v. Philadelphia Electric Company, supra:

When preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. All doubts are resolved in favor of the pleader.

Id. 388 Pa.Super. at 405, 565 A.2d at 1172 (footnote and citations omitted).

Appellant argues, first, that the trial court erred in sustaining Lesko’s preliminary objection in the nature of a demurrer to Count III, which alleged malicious prosecution. In his amended complaint, appellant makes broad allegations that Lesko provided information to Officer Blodgett, the police officer who filed the criminal complaint. Appellant claims that Lesko knew, or in the exercise of reasonable diligence should have known, that the information which she provided was false and that her actions were done “solely for her benefit and for the anticipated beneficial effect on the pending custody proceedings and not with any reasonable belief that any criminal conduct had actually occurred.” Appellant specifically alleges that Lesko falsely informed Officer Blodgett that appellee Burkhart was to testify in the impending custody proceeding and that appellant had sexually molested his daughter.

Even accepting as true the allegation that Lesko made these statements to Officer Blodgett, we agree with the trial court that appellant has not pled sufficient facts to support a cause of action for malicious prosecution against Lesko. In order to prevail in an action for malicious prosecution, as noted earlier, the plaintiff must show, inter alia, that the defendant instituted the criminal proceedings against the plaintiff. Appellant was arrested for intimidation of a witness, simple assault, terroristic threats, and harassment. The allegations of Count III do not suggest that Lesko initiated these proceedings against appellant or that she provided information concerning the incident between appellant and Burkhart upon which the criminal charges were based. The only connection between the criminal charges against appellant and the allegedly false statements made by Lesko is Lesko’s alleged verification of Ann Burkhart’s status as a prospective witness. As the trial court noted, the only criminal conduct that Lesko allegedly attributed to appellant was the sexual molestation of his daughter; appellant has not been charged with such an offense. We conclude, therefore, that the trial court did not err in dismissing Count III of appellant’s complaint.

In Count IV of his complaint appellant attempts to state a claim for intentional infliction of emotional distress based on the actions attributed to Lesko in Count III. Appellant cannot recover on such a claim, as noted earlier, unless the conduct complained of was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The conduct attributed to Lesko—making accusations to a police officer that she knew or reasonably should have known were false—was not of such a character. Accordingly, we affirm the trial court’s dismissal of Count IV.

III. COUNTS V AND VI: APPELLEE KRATZENBERG, SHIELDS AND LESKO, P.C.

In Count V of his complaint, appellant alleges that Kratzenberg, Shields and Lesko, P.C., Lesko’s law firm, is liable for malicious prosecution pursuant to the doctrine of respondeat superior. “Where the master is joined with his servant in an action based wholly on the servant’s negligence or misconduct, the master cannot be held liable unless there is a cause of action against the servant----” Skalos v. Higgins, 303 Pa.Super. 107, 113, 449 A.2d 601, 603 (1982); see also Mamalis v. Atlas Van Lines, Inc., 364 Pa.Super. 360, 528 A.2d 198 (1987), aff'd, 522 Pa. 214, 560 A.2d 1380 (1989). Since, as we have found, appellant has no cause of action for malicious prosecution against Lesko, it necessarily follows that he has none against the law firm. Accordingly, the trial court did not err in dismissing Count V of the complaint.

In Count VI, appellant alleges that the law firm was negligent in failing to train, supervise, and prevent unethical and irresponsible conduct by Lesko. Assuming for the sake of argument that appellant has alleged sufficient facts to show that the law firm owed a duty to him and breached that duty, we have already determined that Lesko’s alleged conduct did not contribute to the commencement of criminal proceedings against appellant. Therefore, as there is no causal relationship between the firm’s allegedly negligent supervision and the harm suffered by appellant, the trial court did not err in dismissing Count VI of appellant’s complaint.

In the appeal at No. 1378, the appeal from the portion of the trial court’s order dismissing Count II is quashed. The order is affirmed insofar as it dismisses Counts IV, V, and VI. In the appeal at No. 1824, the order of the trial court dismissing Count III is affirmed. Jurisdiction is relinquished.

BECK, J„, files a concurring opinion.

FORD ELLIOTT, J., concurs in the result of the Majority Opinion.

BECK, Judge,

concurring:

I join the majority’s holding that the orders appealed from are final and appealable insofar as they put appellant out of court on all claims for relief asserted against Deborah Lesko individually and against Kratzenberg, Shields and Lesko, P.C., Lesko’s law firm. I also join in the majority’s affirmance of the dismissal of appellant’s complaint against those defendants. As to the balance of the majority opinion, I concur in the result only. Although I agree with the majority’s determination that the orders appealed from are not final and appealable insofar as they dismiss some but not all of appellant’s claims for relief against the remaining defendant, Ann Burkhart, I reach that conclusion by a far different route.

The trial court dismissed only one of appellant’s counts naming Burkhart as a defendant. This was the count alleging intentional infliction of emotional distress. The remaining count against Burkhart, alleging malicious prosecution, was not dismissed. The majority concludes that the dismissal of the intentional infliction of emotional distress count is not a final appealable order because it did not dismiss a separate cause of action under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). I, on the other hand, would not struggle to justify this result under Praisner, but would quash the appeal simply because the order appealed from did not put plaintiff out of court on all of his claims for relief against this defendant.

As I have more fully discussed in my dissenting opinion in Trackers Raceway, Inc. v. Comstock, 400 Pa.Super. 432, 583 A.2d 1193 (1990) (en banc), a companion to this case, the proper answer to the Praisner dilemma is to overrule Praisner and hold that an order dismissing some but not all of the claims for relief set forth in a complaint against a particular defendant is interlocutory. This solution will remove the element of uncertainty that has plagued both courts and litigants since Praisner was decided and will foster the policy of avoiding piecemeal appeals.

Although my opinion filed in the Trackers case constitutes a full statement of my position on this issue, several aspects of the majority’s opinion in this case require a further, although brief, response.

The majority enunciates a test for determining when a separate cause of action has been dismissed. The test appears to equate a cause of action with a claim for relief for a given loss. As otherwise stated in the majority opinion, the test is whether the dismissed count(s) sought “different relief for a different harm”. Although the majority determines that this is the key to ascertaining whether a partial dismissal order is final, it concedes at the outset that the test will not work in every case, stating that in some cases additional factors must be considered. Unfortunately, the majority fails to specify what those factors are. Rather, the majority indicates that in such cases the analysis will be similar to that undertaken in other cases where a consideration of numerous factors is required, such as cases involving review of equitable distribution orders, and adds that the analysis will be aided by reference to prior cases decided under Praisner.

I see a clear distinction between cases such as those involving a review of an equitable distribution order in light of the statutorily mandated factors and a case such as this, where we are asked to perform an analysis of appealability in light of “additional factors” which are not identified. I also do not view our prior decisions in Praisner cases as providing many clues as to what those relevant factors might be. As my dissent in Trackers demonstrates, there is great confusion and inconsistency among those cases. The majority itself demonstrates this fact when it turns to an analysis of this case. The majority begins by cataloging those cases where this court has previously dealt with the appealability of orders that dismissed only a portion of a complaint that included claims for intentional infliction of emotional distress or malicious prosecution. As the majority’s own survey reveals, these cases do not provide principles to guide our analysis in this case. Most of them do not even discuss the issue, but simply state their conclusion.

The majority’s attempt to fashion a reliable and clear Praisner method of analysis is laudable but not, in my view, successful. The question of whether a dismissed count sought recovery for a separate given loss is no more easily or consistently answered than is the original question posed by Praisner, i.e., did the dismissed count plead a separate cause of action. This is readily proven by comparing the majority’s analysis in this case to that found in the dissenting opinion to Schuetz v. Goldberg, 392 Pa.Super. 448, 573 A.2d 549 (1989) (Olszewski, J., dissenting), in which the same test for appealability is purportedly applied, yet the analysis is materially different.

In this case, the majority concludes that the order dismissing the intentional infliction count did not dismiss a claim for a given loss that was separate or different from that asserted in the remaining malicious prosecution count. This conclusion is based on the majority’s perception that both the allegations of wrongdoing by defendant, i.e., the facts alleged, in each count and the harm to plaintiff alleged in each count are overlapping. Thus, plaintiff is found to have sought one form of relief for one alleged loss arising from one set of facts instead of different relief for different harms.

In the dissenting opinion in Schuetz, on the other hand, although the same test for Praisner appealability is stated, the analysis is different. In Schuetz, plaintiff had sued several defendants for medical malpractice and negligent infliction of emotional distress. Both counts arose out of the same facts—the single allegation of wrongdoing was inadequate medical treatment. The trial court dismissed the count pleading negligent infliction of emotional distress. This court quashed the appeal without opinion. In a published dissent, Judge Olszewski opined that the dismissal put plaintiff out of court on a claim for different relief for a different harm because the relief sought for medical malpractice was for physical injury and the relief sought for negligent infliction was for emotional distress. Judge Olszewski would have so held despite the fact that both types of alleged harm arose out of the selfsame acts by defendants. He specifically rejected the idea that whether a dismissed count sought “different relief for different harms” depended on whether the facts underlying each count were different.

A similar inconsistency in analysis can be found in a comparison of this case and the majority opinion in Trackers. In Trackers, all five counts of the complaint arose out of the selfsame allegations of wrongdoing by defendants. Plaintiff alleged improper placement of insurance giving rise to both common law and statutory theories of relief and resulting in loss of premiums paid and business losses. All losses were equally alleged in each count. Yet this court decided that the dismissal of the two counts based on statutory violations is a final order, despite the fact that the losses alleged, the harms suffered by plaintiff, are identical in every count of the complaint. The only difference between the statutory counts and the common law counts was that in one of the statutory counts, treble damages were sought. Thus, the relief was different, but the loss or harm alleged giving rise to that right to relief was the same. In contrast, here the majority holds that the order appealed from is interlocutory because the losses alleged, the harms suffered by plaintiff, namely, “humiliation, embarrassment, injury to reputation, and physical and emotional distress,” (at p. 1188), are the same in both the dismissed count for intentional infliction and the remaining count for malicious prosecution.

How is the determination of what is different relief for a different harm to be made? Are both different relief and a different harm required, or is it sufficient to seek materially different types of relief, despite the same allegations of wrongdoing resulting in one general loss? Moreover, how does one decide whether the relief sought in one count is cumulative to the relief sought in another? How, for example, did the dissent in Schuetz conclude that plaintiffs damages for negligent infliction of emotional distress were cumulative to her damages recoverable for professional negligence? Were not all the legally caused damages flowing to plaintiff from the defendant’s alleged professional negligence recoverable on that count, even without pleading and proof of negligent infliction of emotional distress? Could not the plaintiff have recovered for all of her suffering, i.e., emotional distress, that flowed from the malpractice in her professional negligence claim, which had not been dismissed? What precedent guides us on this issue? These are questions that should not be left open to be resolved in the same inconsistent manner in which we have handled the question of what is a separate cause of action in our prior Praisner decisions.

Thus, for the reasons stated here and in my dissenting opinion in Trackers, I would overrule Praisner and would quash the instant appeal.

      . Although the trial judge states that he granted Lesko’s motion for a more specific pleading, we note, as did the trial judge, that Lesko filed a motion to strike rather than a motion for a more specific pleading. A trial court may, on its own motion, permit or require the amendment of a pleading. Delgrosso v. Gruerio, 255 Pa.Super. 560, 564 n. 6, 389 A.2d 119, 121 n. 6 (1978).

      . When Praisner was decided, Pa.RX.P. 1020(d)(1) permitted, but did not require, the joinder of more than one cause of action, arising out of the same transaction or occurrence, in a single complaint. Subsequently, Rule 1020(d)(1) was amended so that the joinder of more than one cause of action arising out of the same transaction or occurrence is now mandatory. We conclude, however, that the change in the rule does not require a revision of the Praisner holding.

      . In Sweener the Supreme Court was required to decide the finality of a summary judgment entered against two out of three defendants who subsequently participated in the trial of the third in order to determine the latter’s liability. The Court held that the summary judgment constituted a final and appealable order. Although the Court’s observations concerning finality were not made in response to a Praisner-type situation, they must nevertheless be accorded great authority, not only because they constitute the views of the Commonwealth’s highest court but also because the Supreme Court has never directly addressed Praisner.

      . In Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988), alloc. denied, 520 Pa. 617, 554 A.2d 509 (1988), this Court interpreted Kazatsky as making clear "that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania.” Id., 374 Pa.Superior Ct. at 44, 542 A.2d at 139. However, since, as the Court noted, the facts of the case did not support a claim of intentional infliction of emotional distress in any event, the Court’s interpretation of Kazatsky is dictum and therefore not binding precedent.

      . Although the trial court suggests that appellant’s statement of matters complained of on appeal is inadequate with respect to Count III, the statement does not defeat our ability to conduct a meaningful appellate review. Accordingly, appellant has not waived his challenge to the dismissal of Count III. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 524, 456 A.2d 1055, 1059 (1983).

      . The majority takes this language from the decision of the Supreme Court in Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 533 A.2d 998 (1987), despite the fact that Sweener was not a case involving the dismissal of some but not all counts of a multi-count complaint and contains no comment by the Supreme Court on that issue.

      . The majority opinion in Trackers suffers from the same defect. While stating that additional factors may be relevant to a determination of appealability under Praisner, those factors are not specified.

      . Although I recognize that a dissent to a panel decision of this court has no binding precedential effect on this case, an en banc decision, nevertheless I discuss the dissent in Schuetz to illustrate that the test for Praisner appealability announced by the majority, which was also used in Schuetz, is subject to widely varying applications.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: WIEAND, Judge, BECK, Judge,

license: Public Domain

text:
    583 A.2d 1193
    TRACKERS RACEWAY, INC., Appellant, v. COMSTOCK AGENCY, INC., a Corporation; Allied Specialty Insurance, Inc., a Corporation; American Columbus Insurance Company, a Corporation; T.H.E. Insurance Company; Southwestern Fire and Casualty, a Corporation; John Branish; and Harold Churns, an Individual, Appellees.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Dec. 14, 1990.

      Peter Molinaro, Jr., Pittsburgh, for appellant.
    Michael L. Magulick, Pittsburgh, for Comstock & Branish, appellees.
    Arthur J. Murphy, Jr., Pittsburgh, for Allied Specialty, appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ., En Banc.

       FORD ELLIOTT, J., did not participate in the consideration or decision of this case.

   OLSZEWSKI, Judge:

In this case, we are asked to decide whether an order dismissing two out of five counts of a complaint is an immediately appealable final order. We must therefore also examine the doctrine of appealability announced in the seminal case of Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Applying the Praisner standard, we conclude that the trial court’s order dismissing counts IV and V of appellant’s complaint is final and appealable.

The factual history of the case is as follows. In 1987 appellant, Trackers Raceway, Inc., filed a five-count complaint against appellees, Comstock Agency, Inc.; Allied Specialty Insurance, Inc.; American Columbus Insurance, Inc.; T.H.E. Insurance Company; Southwestern Fire and Casualty, Inc.; John Branish and Harold Churns. The complaint alleged a number of facts. Trackers is a go-cart track operator, regulated by the Pennsylvania Department of Agriculture. Departmental regulations mandated that insurance coverage of the track be written only by insurers authorized to do business in the Commonwealth of Pennsylvania.

Trackers sought to obtain insurance coverage in mid-1986. Appellant contacted appellee Branish, an insurance agent for the Comstock agency, in order to procure the necessary coverage. Coverage was eventually obtained through American Columbus Insurance, predecessor of appellee T.H.E. Appellant paid the premium of $21,250 for the coverage, but was advised, shortly thereafter, that American was not authorized to do business in Pennsylvania and that operation of the track without other coverage would subject appellant to heavy fines.

In response to the Department of Agriculture’s warning, appellant ceased its operations for approximately three weeks, during which it obtained coverage with another insurer which was duly licensed in Pennsylvania. Appellant alleges that the insurance policies issued by American were not in compliance with Department of Agriculture regulations, and did not conform to the representations of Branish and Comstock regarding the terms and conditions of coverage. Appellant proceeded to demand a refund of the full premium paid, but the demand was refused.

Trackers’ complaint contains five counts. All of the counts are against all defendants, consistent with the allegation that all defendants acted in concert and/or are the agents of one another. All counts incorporate by reference all of the factual allegations contained in the first 45 paragraphs of the complaint. Furthermore, all counts incorporate appellant’s general demand for relief whereby Trackers seeks recovery against the defendants, jointly and severally, for damages in excess of $20,000, including damages resulting from business interruption, insurance premiums, attorney’s fees, costs, and expenses.

In Count I, appellant alleges a breach of agreement to place insurance as mandated by Pennsylvania law, a breach of fiduciary duty, and misrepresentation based on the failure to place proper insurance and on deficiencies in the terms and conditions of the policies. The relief sought is for damages, costs, and fees.

Count II alleges misrepresentation; violation of Pennsylvania law, rules and regulations of the Pennsylvania Insurance Department; and wanton, willful, and reckless conduct. The relief sought is the same as in the first count.

Count III alleges misrepresentation, fraud, and deceit, specifically in misrepresentation of the terms and conditions of the American policies, and negligent and/or reckless conduct in failing to comply with Pennsylvania statutes and with the rules and regulations of the Pennsylvania Insurance Department, Department of Agriculture, and Corporations Bureau. Appellant also alleges that the foregoing conduct constituted a breach of agreement with and fiduciary duty to Trackers. Relief sought is for compensatory and punitive damages.

Counts IV and V are at issue in this appeal. In count IV, appellant alleges that the actions of defendants set forth in all of the preceding paragraphs of the complaint constitute unfair or deceptive practices under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa.Stat. Ann. § 202-1 (Supp.1990), and demands treble damages, fees, and delay damages. Count V alleges that the foregoing actions constitute violations of the Insurance Department Act of 1921, Pa.Stat.Ann. tit. 40, § 235 (Purdon 1971), and demands damages.

All defendants filed preliminary objections in the nature of a motion to strike, and the trial court dismissed counts four and five. Appellant then filed this appeal to the Superior Court of Pennsylvania, which granted en banc consideration in order to focus on whether the order appealed from is final and appealable.

Generally, an appeal will lie only from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544 (1978). An order is interlocutory and not final unless it puts a litigant out of court. Allesandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 281, 409 A.2d 347, 351 (1979); Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). Pa.Rules Civ.Proc., Rules 1020(a), 1044(a); Pa.Rules App.Proc., Rule 1972, 42 Pa.C.S.A.

This Court reviewed the applicable law in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). The standard of Praisner is as follows:

As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499, 439 A.2d 683, 686-687 (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981); Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339. An examination of the cases so holding discloses that the basis upon which this general rule is founded is that in most instances when one count of a multi-count complaint has been dismissed, the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these cases, the courts have adhered to a policy which seeks to avoid piecemeal litigation. Following the general rule, this Court has ... held that an appeal will not lie from an order granting partial summary judgment.

Id., 313 Pa.Superior Ct. at 337-338, 459 A.2d at 1258.

It has long been recognized that in ascertaining whether an order is final, we must look beyond the technical effect of the adjudication to its practical ramifications. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). In fact, Praisner stands for that very proposition. Under Praisner, “Certain orders which have not put a litigant literally out of court or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.” 313 Pa.Super. 332, 459 A.2d at 1258-1259.

In Praisner, itself, appellant had alleged separate causes of action for false arrest, assault and battery, and malicious abuse of process. The trial court entered summary judgment in favor of appellant on the separate counts of the complaint which alleged causes of action for false arrest and malicious abuse of process. Appellant appealed the entry of these summary , judgments to the Pennsylvania Superior Court, which held the appeal to be proper. While the appeal was pending, but before it had been decided, the cause of action for assault and battery was litigated to final judgment.

Fundamental to Praisner is the definition of a cause of action. A cause of action has been defined as “the fact or facts which give a person a right to judicial relief; the legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle a party to sustain action and give him the right to seek a judicial remedy in his behalf.” Black’s Law Dictionary, 5th Ed. (1979). In many cases, a separate cause of action can be distinguished from an alternate theory of recovery by looking at the relief requested. Alternate theories of recovery are different means for obtaining the same relief for the same harm caused by the same party. A plaintiff cannot recover on all the alternate theories, as this would constitute a duplicative recovery. Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990) (en banc, Olszewski, J., concurring).

On the contrary, a separate cause of action requests different relief for different harms. A party may potentially recover complete relief on each of the separate causes of action. In close cases, additional factors must be considered in determining whether a party has alleged separate causes of action or multiple theories of recovery for a single cause of action.

Admittedly, in the case at bar, we have an inartfully drafted complaint which may make it more difficult to apply the Praisner standard. There is considerable overlap among the first three counts; e.g., misrepresentation, fraud and deceit, and breach of fiduciary duty. We must not be misled, however, by the labels used by litigants in drafting their complaints. Capanna v. Travelers Insurance Co., 355 Pa.Super. 219, 513 A.2d 397 (1986). Labels may often be confusing and we must, therefore, look beyond them.

It is clear, however, that under Praisner, the trial court order dismissing counts four and five of the instant complaint was final and appealable because both counts state separate and distinct causes of action which are based on two different statutes. Count IV of appellant’s complaint alleges liability based on violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., by all of the defendants. Appellant argues that the statute provides for a private cause of action to recover damages sustained as a result of the practices declared unlawful by the Act, and authorizes treble damages for such violation. Section 9.2 applies to the Insurance industry. Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987); Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986).

Section 9.2(a) states the following:

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 the result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this Act, may bring a private action to recover actual damages or one hundred dollars, 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, and may provide such additional relief as it deems necessary or proper.

73 P.S. § 201-9.2(a) (emphasis added).

Appellant did not purchase the policy “primarily for personal, family or household purposes.” The insurance policy at issue was purchased for commercial purposes only. Appellant seeks damages arising from the interruption of its business operations due to the misrepresentations of defendants. Therefore, Trackers has failed to state a cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Count V of the complaint alleges that the conduct of all of the defendants constituted a violation of the Insurance Department Act of 1921, 40 P.S. § 235. Section 235 provides in pertinent part:

An insurance agent shall be personally liable on all contracts of insurance ... unlawfully made by or through him, directly or indirectly, for or in behalf of any company ... not authorized to do business. in this Commonwealth. Any person soliciting risks, forwarding premiums, or counter-signing or delivering policies, shall be deemed to be the agent of the company ... within the meaning of this section.

40 P.S. § 235.

Here, appellant has not made any allegations of loss “on the contract,” claims made, or judgments unsatisfied within the scope of coverage of the policies issued by defendants so as to impose personal liability “on the contract,” pursuant to 40 P.S. § 235. Thus, no cause of action has been stated under Section 235 of the Insurance Act.

To use the words of Praisner, appellant has been put “out of court” on two separate and distinct causes of action. The statutory bases for counts four and five are not mere alternate theories of recovery for the same cause of action as the other three counts.

We hold the order dismissing counts four and five to be final and appealable.

Order affirmed.

WIEAND and BECK, JX, dissent.

FORD ELLIOTT, X, did not participate.

WIEAND, Judge,

dissenting:

I respectfully dissent. The order sustaining preliminary objections in the nature of a demurrer to two of five counts of the complaint in this case is interlocutory. Therefore, under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), the appeal should be quashed.

The five counts of the complaint filed in this case aver different theories for allowing recovery for a single harm. All counts rely upon the same facts; all seek recovery for an alleged failure to provide appellant with proper insurance coverage for his business. Whether recovery is sought on the basis of common law principles or rights created by statute, appellant seeks recovery because he did not have proper insurance coverage. When the trial court dismissed two of five counts of the complaint, it did not put appellant “out of court” on the underlying cause of action for damages on account of such improper coverage. It did nothing more than limit the theories (and perhaps the damages) under which appellant’s single cause of action would be given further consideration. Such a determination was comparable to a trial court’s rejection of some but not all theories for recovery advanced by plaintiff at trial; and like such a trial ruling, the order in this case is not immediately appealable.

BECK, Judge,

dissenting:

This case was certified for en banc consideration because it raised a crucial question—the continuing viability of the doctrine of appealability announced in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Rather than grappling with this question, however, the majority summarily finds that the order appealed from is appealable under Praisner and appears to rest this conclusion on no more than a general “sense” that this order somehow deprived appellant of the right to pursue a “separate cause of action.”

I disagree. This appellant should not be before this court at this stage in this lawsuit. No order has been entered against appellant that either technically or pragmatically ends the litigation or puts appellant out of court. The order on appeal does no more than narrow the theories on which appellant may rely in trying its case. I would hold that the order on appeal is interlocutory because it does not dismiss all of plaintiffs claims for relief against any particular defendant. In my view, it is time to reconsider the entire appealability doctrine that Praisner injected into Pennsylvania law. The result of this reassessment is obvious. Praisner should be rejected as an unworkable and unwarranted standard of finality.

In Praisner, this court announced that in the context of a case involving a multi-count complaint an immediate appeal must be permitted to lie from the dismissal of some but not all of the pleaded counts if the effect of the dismissal was to preclude the litigant from asserting a separate cause of action. Praisner itself involved a three count complaint alleging assault and battery, false arrest and malicious prosecution. The latter two counts were dismissed and plaintiff appealed. The Praisner court allowed the appeal, finding that the order appealed from fell within an exception to the recognized principle that an order dismissing fewer than all counts of a complaint was interlocutory. Opining that this principle was based on the fact that many orders dismissing some but not all of the claims in a complaint did not put the aggrieved party out of court, the Praisner court held that in some cases such a partial dismissal does put the litigant out of court on a separate cause of action and should be immediately appealable. Id., 313 Pa.Superior Ct. at 336-40, 459 A.2d at 1258-9.

Fundamental to Praisner is the definition of a separate cause of action. Unfortunately, the Praisner court provided only what might be called “negative guidance” on the question of how to determine when a separate “cause of action” has been dismissed, stating that a cause of action is not to be equated with a legal theory of relief. The Praisner opinion illustrated this principle as follows:

Thus, the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided. Similarly, there is no final order where a count averring negligence has been dismissed but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts. For similar reasons, where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action for breach of contract does the measure of damages become relevant. The same result obtains where a separate count seeking punitive damages in a trespass action has been dismissed.

Praisner, 313 Pa.Super. at 341-42, 459 A.2d at 1260.

This distinction is certainly helpful. But what is lacking is an actual definition of a separate cause of action. Thus, although Praisner tells us something about what is not a cause of action, it tells us little about what is.

The Praisner decision has created difficulties for courts who must apply it and for litigants who must predict how those courts will do so at the risk of suffering the quashal of their appeal as either premature or, worse, late. The result has been the filing of protective appeals by counsel who do not know whether the order that has been entered against their client is final under Praisner and who understandably do not wish to take the chance that their client’s appeal rights will be waived if an immediate appeal is not taken. See Zamecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987) (en banc) (Del Sole, J. and Beck, J., dissenting), appeal denied, 518 Pa. 643, 542 A.2d 1371 (1988). Such protective appeals not only burden the appellate courts but also materially delay the litigation.

The heart of the problem is the proper definition of that chameleon-like phrase, “cause of action,” which is determinative of appealability under Praisner. As the Supreme Court long ago remarked:

The phrase “cause of action” is not susceptible of any single definition to be applied in all types of cases. In Rooney v. Maczko, 315 Pa. 113, 117, 172 A. 151, (1934) this Court quoted with approval that portion of the opinion in U.S. v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, [280, 77 L.Ed. 619, (1933)] where Mr. Justice CARDOZO said: “A ‘cause of action’ may mean one thing for one purpose and something different for another.......At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of the law of remedies, the identity of the cause being then dependent on that of the form of the action or the writ. Another aspect reveals it as something separate from writs and remedies, the group of operative facts out of which a grievance has developed.”

Fisher v. Hill, 368 Pa. 53, 58-9, 81 A.2d 860, 864 (1951).

Unless this phrase is clearly defined, there can be no consistent means of determining when a dismissal of part of a complaint has put a party out of court on a separate “cause of action” and is, therefore, appealable under Praisner. Most of the cases applying Praisner make no attempt to define this phrase, perhaps because the proper formula for doing so has never been found. These cases simply conclusively state that the order appealed from either has or has not dismissed a separate cause of action, often doing so in a footnote that contains no discussion in support of the conclusion reached. See, e.g., Krause v. Great Lakes Holdings, Inc. v. Penn Pocahontas Coal Co., 387 Pa.Super. 56, 563 A.2d 1182, 1185 n. 3 (1989); Ganassi v. Buchanan-Ingersoll, P.C., 373 Pa.Super. 9, 540 A.2d 272, 274 n. 2 (1988); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878, 879 n. 1 (1986); Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386, 1389 n. 4 (1985); Black v. Board of Directors of West Chester Area School District, 98 Pa.Commw. 91, 510 A.2d 912, 913 n. 1 (1986); Morrow v. The Bell Telephone Co. of Pennsylvania, 330 Pa.Super. 276, 479 A.2d 548 (1984).

Those cases that do attempt to explain their application of Praisner have not succeeded in formulating a definition of “cause of action” that can be consistently applied in future cases. See generally Danko Development v. Econocast Corporation, 369 Pa.Super. 120, 534 A.2d 1108 (1987) (noting inconsistencies between cases applying Praisner). A brief review of some of the cases reveals that the jurisprudence of finality is rife with conflicting rationales. These cases illustrate the insurmountable problem posed by the Praisner concept of appealability.

For example, in one case decided shortly after Praisner, the court quashed an appeal from an order dismissing that portion of a complaint that sought recovery of damages for personal injuries suffered by the plaintiff as a result of a car accident. The portion of the complaint that sought recovery for property damage arising from the same accident was not dismissed. Pullium v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983). The court stated that it did not find the order appealable under Praisner because Praisner had involved a multi-count complaint whereas in Pullium all of the claims were joined in one count. Id., 316 Pa.Superior Ct. at 348, 462 A.2d at 1384 n. 9. This suggests that the determination of whether a complaint pleads separate causes of action is made by looking first at whether the various claims are set forth in separate counts. However, other later cases have not found the form of the complaint to be determinative of appealability.

In Newman v. Thorn, 359 Pa.Super. 274, 518 A.2d 1231 (1986), the court noted that plaintiff had not pled each of his separate causes of action in separate counts in his complaint. Id., 359 Pa.Superior Ct. at 279, 518 A.2d at 1234 n. 1. The Newman court did not find this pleading defect pertinent to its analysis and found that the various allegations in the complaint did set forth separate causes of action. Id., 359 Pa.Superior Ct. at 278-80, 518 A.2d at 1234. The court stated that the crucial inquiry in determining whether a separate cause of action had been dismissed is whether all of plaintiffs claims for relief arose from the same facts or allegations of wrongdoing. Id.

In contrast, other cases have pursued a Praisner analysis that appears to focus on the types of relief sought and not on the facts or allegations of wrongdoing set forth in the complaint. In Capanna v. The Travelers Insurance Co., 355 Pa.Super. 219, 513 A.2d 397 (1986) (en banc), decedent was killed in an automobile accident. Plaintiff sued the assigned insurer. The complaint set forth three counts in assumpsit. The first sought basic loss benefits in the nature of work loss benefits, medical expenses and funeral expenses on behalf of the estate of the decedent. The second count sought recovery of the same benefits on behalf of plaintiff in her individual capacity as a survivor. The third count sought “survivor’s loss benefits” on behalf of plaintiff as a survivor. The trial court dismissed the first count insofar as it sought work loss benefits and dismissed the second count in toto. The en banc court found the order appealable, opining that it precluded plaintiff from recovering work loss benefits, which the court found to be completely distinct from the other benefits sought in the complaint. Id., 355 Pa.Superior Ct. at 224-27, 513 A.2d at 400-401. The court made no mention of the fact that all of plaintiff’s claims for benefits arose out of the same facts and alleged the same wrongful acts. See also Schuetz v. Goldberg, 392 Pa.Super. 448, 573 A.2d 549 (Olszewski, J., dissenting) (pertinent inquiry in ascertaining appealability under Praisner is whether the order appealed from dismissed a claim for a distinct type of relief); Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990) (where order dismissed count that requested different relief for different harm, it is appealable under Praisner).

On the other hand, some Praisner cases appear to hold that an immediate appeal must be allowed where the damages recoverable on the dismissed counts were materially different in nature or amount than those recoverable on the counts that remained or where the dismissed counts pleaded violations of statutory law while the remaining counts asserted common law rights to recovery. For example, in Hardy v. Pennock, 365 Pa.Super. 206, 529 A.2d 471 (1987), the court allowed plaintiffs to appeal an order dismissing three out of four counts of their complaint. All four counts arose out of the same facts and were based on the same alleged wrongful acts of defendant, namely the refusal of defendant insurer to provide coverage for losses suffered by plaintiffs when their home burned down. The first count alleged breach of contract. The second count alleged negligence. The third count alleged misrepresentation and fraud. The fourth count alleged a violation of the Unfair Trade Practices and Consumer Protection Law. The court allowed the appeal insofar as the order dismissed counts three and four. The court appeared to allow the appeal from the dismissal of count three because it alleged fraud, a theory that differed from the theories asserted in counts one and two, and requested punitive damages. The appeal from the dismissal of count four was allowed because it was based on an alleged statutory violation as opposed to the common law grounds asserted in counts one and two. Id., 365 Pa.Superior Ct. at 213-15, 529 A.2d at 475. See also Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987) (claimed violation of Unfair Trade Practices and Consumer Protection Law sets forth separate cause of action because the statute permits the award of treble damages and attorney’s fees and implicates a different statute of limitations than common law theories of recovery, despite fact that all claims for relief arose out of the same alleged wrongful acts.)

In summary, Praisner has given rise to at least five separate analyses for determining appealability: the form of the complaint (Pullium); the facts or allegations of wrongdoing (Newman)] the relief sought (Capanna,)] the nature of the damages sought (Gabriel)] and, whether a statutory or common law ground for recovery was involved (Hardy). Only one conclusion can be drawn from this morass of precedent. In the eight years since Praisner was decided there has been a total failure to develop a clear and consistent means of applying it. This obviously indicates that Praisner’s statement of its test for appealability, i.e. the dismissal of a “separate cause of action,” was too indefinite to produce a clear standard.

The majority opinion itself is starkly illustrative of this confusion and inconsistency. In the case before us, the majority appears to adopt an amalgam of at least three of the analyses described above. The majority ultimately concludes that the order appealed from is final because the two counts dismissed by the order were based on two different statutes whereas the balance of the complaint pled common law causes of action. (Op. at 438-440). In contrast, in the majority’s introductory discussion of the Praisner doctrine, it states that a “cause of action” is to be defined as the fact or facts giving rise to a right to relief (analysis # 2 above). Yet if this were the test actually applied to the facts of this case, we would have to conclude that the order on appeal is interlocutory. The trial court’s order dismissed two out of five counts of the complaint. All of the counts arise out of the same facts, the same transaction, and are grounded on the same allegations of wrongdoing. All of the counts seek recovery for one harm—that which appellant suffered as a result of receiving improper insurance coverage for its business. Application of the facts/allegations of wrongdoing test would clearly require quashal.

Indeed, the majority does not stop at setting forth two proposed Praisner tests, each leading to a different result in this case. Rather, the majority further confuses the analysis by stating in addition that “in many cases, a separate cause of action can be ... [found] by looking at the relief requested.” (Op. at 438). And after this confusing array of analyses, the majority acknowledges that even all of these analyses together will not provide a clear answer. Thus, the majority generally states “[i]n close cases, additional factors must be considered in determining whether a party has alleged separate causes of action____” Id. The majority does not indicate what those additional factors might be.

This scattershot approach to a question as important as this—what orders does this court have jurisdiction to review—is too indefinite. We cannot abdicate our responsibility to the bar in such a manner, leaving it to them to guess which test we will use in a particular case.

I have carefully scrutinized and tested the various Praisner methods of analysis summarized above to determine if any one of them is superior to the others and could be enunciated by this court as the method of analysis to be used in the future for determining the appealability of an order that dismisses some but not all of a complaint. No one method emerges as a clear way to define a separate cause of action so as to provide a satisfactory and consistent test for appealability. Since, after eight years of experimentation, this court has been unable to define finality within the Praisner context, I conclude that we should seek a solution to this finality problem through a route altogether different from Praisner.

One might well question why there should be an immediate right to appeal a dismissal of less than all of the claims for relief against a particular defendant in a multi-count complaint. Why should the aggrieved party have the right to stop the litigation at that point to obtain an immediate resolution of the issues posed by the dismissal instead of waiting until the entire case has terminated? It must be emphasized that denial of the right to an immediate appeal is not a denial of the right to appeal at all. It is simply a postponement of the right until the end of the case, at which time the aggrieved party has the right to complete appellate review and correction of any and all trial court error.

In those few cases where delay of the right to appeal may result in irreparable injury or loss of a meaningful right to review, the partial dismissal order will probably be immediately appealable under other and more easily applied principles of finality, including the collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or Pennsylvania Rule of Appellate Procedure 311(a). Moreover, in those rare cases in which other appeal-ability principles do not allow an appeal as of right and yet immediate appellate resolution of the issues posed by the dismissal of part of the complaint will materially advance the litigation as a whole, the case can be certified for appeal under the Rules of Appellate Procedure. See Pa.R.A.P. 312, 1311. These various avenues are open to the party suffering dismissal of part of the complaint and provide for an immediate appeal in certain cases.

The avoidance of piecemeal appeals has long been a firmly entrenched policy of both this court and the Supreme Court of Pennsylvania. The policy is based on the recognition that allowing piecemeal appeals only serves to frustrate justice. Such appeals greatly protract litigation and therefore increase its cost, so that the party with greater resources can use the appellate process to exhaust the other. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). To limit the right to appeal to those cases where the order appealed from has ended the litigation or disposed of the entire case or where the order, although interlocutory, is nevertheless immediately appealable on one of the grounds described above best serves this policy.

As the foregoing discussion demonstrates, the experience with Praisner has injected a degree of uncertainty into the appeal process that has had undeniably negative consequences for courts and litigants alike. No consistent and viable rationale supporting Praisner’s appealability principle has been found and it appears clear that continuing the Praisner doctrine will continue to foster piecemeal appeals in contravention of the policy disfavoring them. These reasons alone provide sufficient support for eliminating the Praisner appealability doctrine from our law. However, we need not rely solely on these grounds to support our decision that Praisner should be overruled. There is additional support for this conclusion in the fact that one of the central arguments the Praisner court advanced in support of its holding is no longer valid.

As appellees persuasively argue, at least one of the conceptual bases of the Praisner decision is no longer sound. The Praisner court supported its holding by referring to the joinder rules found in Pennsylvania Rules of Civil Procedure 1020 and 1044. However, the former rule was amended and the latter rule was repealed in 1984. Rules 1020 and 1044, as they existed at the time Praisner was decided, can be briefly described as follows:

Under Rule 1020, a plaintiff was permitted to assert in one complaint two or more causes of action which arose from contract or which were quasi-contractual in nature. The pleading requirements of Rule 1044 were similar, albeit slightly more restrictive. Pursuant to Rule 1044, a plaintiff was allowed to join in one complaint two or more causes of action in trespass which arose out of the same transaction or occurrence or series of transactions or occurrences.
Despite their differences, Rules 1020 and 1044 were the same in one important respect—neither compelled the joinder in one complaint of separate causes of action.
There was only one situation in which joinder of claims was required. Where the same transaction or occurrence or series of transactions or occurrences gave rise to causes of action sounding both in trespass and in assumpsit, it was mandatory under Pa.R.C.P. 1020(d)(1) that [they] shall be asserted in one action. A cause of action not joined as required by Rule 1020(d)(1) was considered waived. See: Pa.R.C.P. 1020(d)(4).

Jones v. Keystone Insur. Co., 364 Pa.Super. 318, 528 A.2d 177, 180-81 (1987), appeal denied, 518 Pa. 613, 540 A.2d 535 (1988).

However, in 1983 the Supreme Court created a single form of civil action, thereby abolishing the prior distinction between trespass and assumpsit. In implementing this change, Rule 1044 was rescinded and Rule 1020 was amended, in pertinent part, as follows:

(a) The plaintiff may state in the complaint more than one cause of action against the same defendant heretofore asserted in assumpsit or trespass. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
(4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action.

Pa.R.C.P. 1020.

The pertinence of this change in the joinder rules to the continued viability of Praisner is clear upon even a cursory reading of Praisner. The Praisner court specifically supported its holding by reference to the now rescinded and amended joinder rules, as follows:

In the case sub judice, appellant joined three separate causes of action in one complaint. This he was permitted to do by Pa.R.C.P. 1044(a), which permits, but does not require, the joinder of causes of action in trespass which arise out of the same transaction or occurrence or series of transactions or occurrences.
The appealability of the summary judgments entered in this case becomes readily apparent if we understand the basis upon which separate causes of action may be joined in the same complaint. Pa.R.C.P. 1044(a) permits, but does not require, the joinder of causes of action which arise out of the same transaction or occurrence or series of transactions or occurrences.1 If appellant had not joined his three causes of action in one complaint but had used three separate complaints, as he might have done, there could be no doubt about the appealability of judgments entered against him on two of the three causes of action. Should appealability be determined by the form of the pleading or pleadings by which a litigant chooses to state his three, separate causes of action? We think not!
n. 1 Pa.R.C.P. 1020(a), which pertains to assumpsit, permits joinder in the same complaint of an indefinite number of causes of action which arise from contract or are quasi-contractual.

Praisner, 313 Pa.Super. at 339-40, 459 A.2d at 1259.

Clearly the Praisner court perceived an unfairness in denying an immediate right of appeal to a party who chose to join all of his claims in one complaint when he could just as easily have brought each in a separate action and appealed from a dismissal of any one. However, the changes in the joinder rules explained above has eliminated the possibility that a party will bring separate actions against a particular defendant to assert claims arising out of the same transaction or occurrence. The rules now require joinder of all causes of action against a particular defendant arising out of the same transaction or occurrence. Thus, in by far the majority of cases, the appealability of a partial dismissal will not, as feared by the Praisner court, depend on the form of the pleading.

In those few cases where joinder is still permissive even under the revised joinder rules, a dismissal of part of a complaint should nevertheless not be immediately appeal-able. As one member of this court has reasoned:

I would point out that it was the individual litigants’ choice to bring all the issues in the same complaint. Having so chosen, the litigant must bear the risk that if some of the causes of action alleged in the multi-count complaint are dismissed, review will be postponed until the remaining counts have reached a final disposition. To find otherwise frustrates and delays the administration of justice____

Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873, 881 (1987) (en banc) (Del Sole, J., dissenting, Beck, J., joining), appeal denied, 518 Pa. 643, 542 A.2d 1371 (1988).

If we free ourselves of Praisner, we have no difficulty in reaching the proper result in this case. The proper conclusion is that the order on appeal is interlocutory because it does not dismiss all of plaintiff’s claims for relief against a particular defendant and the appeal must be quashed. There is no unfairness in this result. Appellant will return to the trial court to litigate what now remains of its case. As discovery proceeds the relative strengths and weaknesses of the parties’ cases will begin to appear and settlement may become a viable alternative. If the case does proceed to trial and appellant proves the underlying factual allegations and achieves a satisfactory recovery, appellant may choose not to appeal the dismissal of the two statutory counts. Similarly, if appellant does not succeed in proving the underlying factual allegations an appeal may be obviated because appellant will not choose to undertake the difficult task of overturning the factfinder’s factual determinations on appeal. In any event, if for whatever reason appellant does choose to appeal the final decision of the trial court at the end of the case, appellant will have a perfect right to challenge the dismissal of his two statutory counts at that time.

Clearly this is the preferable result. Therefore, I would hold that an order that dismisses fewer than all of the claims for relief against a particular defendant in a multicount complaint is interlocutory. Praisner and similar cases that attempt to apply Praisner to find such orders final and appealable should be overruled. This appeal should be quashed.

      . For example, count III, paragraph 57 alleges, in pertinent part, misrepresentation, fraud, and deceit; i.e., failure to comply with “all applicable statutes of the Commonwealth of Pennsylvania and rules and regulations of the Pennsylvania Insurance Department, Pennsylvania Department of Agriculture and the Corporation Bureau." Plaintiff then proceeds, in counts IV and V, with two specific, statutorily-based allegations, including one for violations of the Insurance Department Act.

      . The failure to take an immediate appeal from an order that is characterized as final and appealable, despite the fact that it does not end the litigation, results in the loss of the right to appeal that order. Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986); Bell v. City of Philadelphia, 341 Pa.Super. 534, n. 4, 491 A.2d 1386, 1389 n. 4 (1985).

      . The difficulties created by appealability doctrines that permit piecemeal appeals from orders that do not end the litigation or dispose of the entire case have prompted many calls for reform of our system of determining when an order is final and appealable. The Supreme Court has recently heeded certain of these calls, promulgating, for example, amendments to Pennsylvania Rule of Appellate Procedure 311(a) which reduce the number of interlocutory orders that are appealable under that rule.
      There is presently pending before the Supreme Court a proposal from the Supreme Court’s Advisory Committee on Appellate Court Rules to amend the rules of appellate procedure to create a system whereby orders disposing of less than an entire case might be certified for immediate appeal by the trial court where certain criteria have been satisfied. These changes would propose to institute a system very similar to that found in Federal Rule 54(b), which provides;
      (b) Judgment Upon Multiple Claims or Involving Multiple Parties When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such, determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is

        subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
      Although the proper application of Rule 54(b) has been the subject of a great deal of litigation in the federal courts, since it is not always clear whether the trial court has correctly determined that the case before it involves multiple claims for relief and that final judgment should be entered as to a separate claim or claims, the rule nevertheless does provide litigants with certainty as to when they need take an immediate appeal and when they need not. If a litigant seeks to have an order certified for appeal under the rule and the trial court refuses, that litigant knows that he will not waive his right to appeal by waiting until the entire case is over. The rule also appropriately leaves to the trial court’s discretion the determination of whether there is any just reason for delay of an appeal from an order disposing of less than all of the case.

      . The Supreme Court has never cited to or expressly commented on the appealability doctrine announced in Praisner. Thus, we have no guidance from that court as to whether the doctrine is sound or as to how it is to be applied.
      In one relatively recent decision of the Supreme Court, Sweener v. The First Baptist Church of Emporium, Pennsylvania, 516 Pa. 534, 533 A.2d 998 (1987), the court noted in dicta that in certain circumstances an appeal may lie from a grant of summary judgment that disposes of less than the entire case. However, the actual issue presented in Sweener involved the appealability of an order granting summary judgment on all of plaintiffs claims for some but not all of the defendants. The court’s decision relates not to the dismissal of some counts of a multi-count complaint but to the grant of summary judgment in favor of some but not all of the defendants.