dissenting:
I respectfully dissent. The majority discusses the issue of whether Brickajlik’s conduct constituted a material and prejudicial breach of the cooperation clause in his insurance policy, and finding that it did not, reverses the lower court order appealed from herein. “It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Commonwealth v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950); Nicola v. American Stores Inc., 351 Pa. 404, 41 A.2d 662 (1945)____ [A]n appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).” Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). Although the issue discussed by the majority was raised below, my review discloses that it was *626not made and preserved on appeal and therefore, I would not reach the merits of this issue.
Moreover, were the merits of the issue properly addressed, I would part ways with the majority for the reasons expressed by Judge Biester, writing for the court en banc below. I agree with the en banc court that Brickajlik’s characterization of the action as one in subrogation is erroneous, and that the action is properly based upon a breach of contract which occurred when appellant signed the proof of loss form pursuant to the terms of his insurance policy with Paxton National Insurance Co., yet refused to perform his promise of cooperation. In addition, I agree with the court’s conclusion that appellee did suffer damage resulting from Brickajlik’s refusal to sign the complaint against Sunoco. Notwithstanding that Paxton might also sue Sunoco in its own name, the claim, undertaken by Paxton in Brickajlik’s name, would more likely yield the result desired by Paxton. Contractually, Paxton clearly would have a right to expect and receive the advantage of a lawsuit in Brickajlik’s name in advancing its case against Sunoco. Therefore, I would affirm the judgment of the court below.