J-A21035-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
NOVA REALTY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
AMERICAN RISK REDUCTION :
SERVICES AND NEMO, II, INC., :
:
Appellees : No. 3426 EDA 2013
Appeal from the Order Entered October 29, 2013,
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 2523 July Term, 2011
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 30, 2014
Nova Realty appeals from an order granting summary judgment in
favor of American Risk Reduction Services and Nemo, II, Inc. (Appellee).1
We affirm.
The background underlying this matter can be summarized as follows.
From 2005 through 2008, Nova Realty procured its errors and
omissions coverage through [Appellee], an insurance broker.
Lawrence Eburuoh, a principal/partner of Nova Realty, owned a
residence which burned with unauthorized residents inside. As a
result, one unauthorized resident died and [a] fire litigation case
ensued. A Complaint was filed on August 21, 2007, in which
[the mother of the deceased] alleged [she] had leased the []
property from Nova Realty and that Nova Realty had failed to
1
It is unclear whether American Risk Reduction Services and Nemo, II, Inc.
are separate entities. The parties and the trial court often refer to them as if
they are one entity. For instance, in its brief, Nova Realty describes the
seemingly related entit
* Retired Senior Judge assigned to the Superior Court.
J-A21035-14
make requested repairs to the circuit breaker on the property.
Nova Realty was sued in the fire litigation and settled for
$3,000,000. However, as set out in the Assignment of Rights
agreement, Mr. Eburuoh, individually and as owner of Nova
Realty, paid only $50,000. Plaintiffs in the fire litigation
acknowledge[d] that they [would] forego their right to collect the
balance of the Three Million ($3,000,000) Dollar settlement from
settling defendants individually in consideration of settling
carriers and other organizations that would have an obligation to
pay claims arising out of the []lawsuit.
[A] Declaratory Judgment [A]ction was instituted [on]
September 30, 2008 by Virginia Surety Company Inc. and
Diamond State Insurance Company (collectively Insurance
Companies) against Nova Realty. [I]nsurance [C]ompanies had
previously disclaimed coverage and a duty to [defend] Nova
Realty in the fire litigation. Nova Realty filed a Joinder
Complaint against [Appellee] herein [on] November 25, 2008
and an Amended Joinder Complaint [on] January 8, 2009. Nova
Realty asserted that [Appellee] would be solely and/or jointly
and severally liable to Nova Realty if it was found that
[I]nsurance [C]ompanies did not have to provide coverage.
[Appellee] filed Preliminary Objections requesting dismissal.
Nova Realty answered asserting [Appellee was] joined not only if
there was no insurance coverage, but that Nova Realty had in
negligence. On February 23, 2009, the Honorable Albert W.
Sheppard, Jr. issued an Order and Opinion sustaining
joinder claims. Judge Sheppard found that common questions of
law and fact did not exist between the [D]eclaratory [J]udgment
[A]ction and the professional liability action to justify joinder
under Pa.R.C.P. 2252. At no point did Judge Sheppard find Nova
2010, Judge Sheppard granted [] Insurance Companies
summary judgment in the Declaratory Judgment [A]ction.
Trial Court Opinion, 11/8/2013, at 1-3 (citations and quotation marks
omitted).
-2-
J-A21035-14
On July 26, 2011, Nova Realty filed a complaint against Appellee,
claiming that Appellee acted negligently in procuring insurance coverage for
Nova Realty. On March 22, 2012, Appellee filed an answer and new matter.
In its new matter, Appellee asserted, inter alia, that the applicable statute of
On November 27, 2012, Appellee filed a motion for judgment on the
two year statute of limitations. The Honorable Annette Rizzo denied the
motion on March 19, 2013.
On April 1, 2013, Appellee filed a motion for summary judgment.
Appellee presented a number of claims in the motion, including its statute-
of-limitations issue. Nova Realty responded to the motion, and on October
29, 2013, the Honorable Sandra Mazer Moss granted the motion, concluding
filed a notice of appeal.
In its brief to this Court, Nova Realty asks us to consider the three
questions that follow.
[1]. Whether the law of the case doctrine prohibited the [trial]
on statute of limitations grounds when this issue was ruled upon
in [Nova
judgment on the pleadings and no new facts or arguments were
raised in the motion for summary judgment?
[2]. Whether the doctrine of judicial estoppel prohibited
[Appellee] from changing [its] previous position that [Nova
-3-
J-A21035-14
action over the insurance policies defendants obtained for [Nova
Realty] was decided?
before it was determined, in a separate declaratory judgment
action, whether the insurance policies [Appellee] procured for
[Nova Realty] provided coverage?
omitted) (re-ordered for ease of discussion).
The standards which govern summary judgment are well
settled. When a party seeks summary judgment, a court shall
enter judgment whenever there is no genuine issue of any
material fact as to a necessary element of the cause of action or
defense that could be established by additional discovery. A
motion for summary judgment is based on an evidentiary record
that entitles the moving party to a judgment as a matter of law.
In considering the merits of a motion for summary judgment, a
court views the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.
Finally, the court may grant summary judgment only when the
right to such a judgment is clear and free from doubt. An
appellate court may reverse the granting of a motion for
summary judgment if there has been an error of law or an abuse
Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.
2005) (citations omitted).
Under the first issue listed above, Nova Realty argues that, because
Appellee presented the same statute-of-limitations claim in its motion for
summary judgment as it did in its motion for judgment on the pleadings
(which Judge Rizzo denied), the coordinate jurisdiction rule precluded Judge
motions differ in kind, as preliminary objections differ from motions for
-4-
J-A21035-14
judgment on the pleadings, which differ from summary judgment, a judge
ruling on a later motion is not precluded from granting relief although
Petrongola v. Comcast-
Spectacor, L.P., 789 A.2d 204, 214 (Pa. Super. 2001). Nova Realty,
Campbell v. Attanasio, 862 A.2d
1282 (Pa. Super 2004), in support of its position that the coordinate
jurisdiction rule prohibited Judge Moss from determining that the statute of
limitations barred its claim.
In Campbell, the defendants filed motions for summary judgment
trial. A judge denied those motions. As the parties prepared for trial, the
defendants purported to file motions in limine where they raised the same
issue they presented in their motions for summary judgment. A different
judge granted the motions in limine.
On appeal, Campbell argued that the second judge violated the
coordinate jurisdiction rule. A panel of this Court agreed with Campbell.
The panel noted that, for procedural purposes, the order granting the
motions in limine constituted a grant of summary judgment. Campbell,
862 A.2d at 1285 n.3. The Court ultimately concluded that the second judge
-5-
J-A21035-14
Thus, in Campbell, the defendants, in effect, were granted summary
judgment on an issue that already had been rejected by way of the denial of
their original motion for summary judgment. Here, Appellee did raise the
same issue in two different motions; however, the motions differed in kind.
The first motion, denied by Judge Rizzo, was a motion for judgment on the
pleadings. The second motion, granted by Judge Moss, was a motion for
summary judgment.
kind, as preliminar
judgment, a judge ruling on a later motion is not precluded from granting
Id. at 1286
(citations omitted); See Garzella v. Borough of Dunmore, 62 A.3d 486,
497 not apply
where the motions are of a different type, and does not bar a judge on
objections or judgment on
(emphasis in original). Accordingly, Campbell is distinguishable from this
case, and the coordinate jurisdiction rule did not preclude Judge Moss from
determining that the statute of limitations bars No
for judgment on the pleadings, she did so without providing an explanation
for her decision. If Judge Rizzo denied the motion based upon a procedural
-6-
J-A21035-14
defect or some reason other than the merits of the statute-of-limitations
issue, then the coordinate jurisdiction rule clearly did not bar Judge Moss
for summary judgment. Given the circumstances of this case, a lack of an
opinion from Judge Rizzo further factors in favor of and bolsters a conclusion
that the coordinate jurisdiction rule was not implicated or violated in this
case. See Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168,
1170 (Pa. Super. 1988).2 For these reasons, Nova Realty is not entitled to
relief on this issue.
Under the second issue listed above, Nova Realty highlights that,
during the preliminary objections stage of the Declaratory Judgment Action,
Appellee argued that Nova Realty should not be permitted to join Appellee to
not be adjudicated until the court declared whether Insurance Companies
were required to provide coverage to Nova Realty. Nova Realty contends
that, because Appellee took this position in the Declaratory Judgment Action,
negligence claim was ripe for adjudication before the Declaratory Judgment
Action concluded.
2
Goldey v.
Trustees of University of Pennsylvania, 675 A.2d 264, 267 (Pa. 1996).
The Court, however, has not held that the absence of an opinion in support
of an initial ruling cannot be considered when examining whether a judge
violated the coordinate jurisdiction rule.
-7-
J-A21035-14
judicial estoppel, a party to an action is estopped from assuming a position
inconsistent with his or her assertion in a previous action, if his or her
contention was successfully maintained Newman Development
Group of Pottstown, LLC v. Genuardi's Family Market, Inc., 2014 WL
4071665, 8 (Pa. Super. 2014) (citation, quotation marks, and footnote
omitted) (emphasis added).
oin Appellee to the
against it was premature and would not be ripe unless and until it was
declared that Insurance Companies did not have to provide coverage to
Nova Realty. See, e.g.
Summary Judgment, 6/14/2013, Exhibit O, ¶¶19-25. However, Appellee
should be dismissed from the Declaratory Judgment Action because Nova
or occurrence as the Declaratory Judgment Action commenced by Insurance
Companies. Id. at ¶¶7-18.
Judgment action and dismissing Appellee from that action, Judge Sheppard
pursuant to Pa.R.C.P. 2252(a)(4), joinder of Appellee to the Declaratory
-8-
J-A21035-14
Judgment Action was improper because that action and the claim against
With New Matter, 3/22/12, Exhibit D.
Nova Realty acknowledges that Judge Sheppard did not refer to
Appellee from the Declaratory
Judgment Action. Nova Realty, however, cites to a non-binding
memorandum and order from the United States District Court for the
[i]t is not necessary
to show a court estoppel
to apply. It only must be shown that a party took an opposite position in a
(citing Simon Wrecking Co., Inc. v. AIU Ins. Co., 541 F.Supp.2d 714
(E.D.Pa. 2008)). That is not the law of Pennsylvania.
The current state of the law in Pennsylvania is that judicial estoppel
only bars a party from assuming a position inconsistent with an assertion it
made in a previous action when that party successfully maintained the
previous inconsistent position. Here, Judge Sheppard did not address the
Declaratory Judgment Action on the basis of that claim. Thus, Appellee did
not successfully maintain that claim in a previous action, and the doctrine of
judicial estoppel did not preclude Appellee from arguing in this case that
-9-
J-A21035-14
Action concluded.
two-year statute of limitations. Under its third issue, Nova Realty contends
its claim did not become
determined in the Declaratory Judgment Action that the insurance policies
procured by Appellee for Nova Realty did not provide coverage to Nova
Realty with respect to the fire litigation. Thus, in Nova Re
timely filed its complaint against Appellee on July 26, 2011. Like the
summary judgment court, we disagree.
ance broker,
[Appellee], for failing to follow instructions and obtain requested insurance
Nova Realty insists that it asked Appellee to procure a specific type of
insurance on its behalf and that it subsequently purchased, through
Appellee, an insurance policy that did not meet the coverage requirements it
informed Appellee it wanted.
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572-73 (Pa. Super.
- 10 -
J-A21035-14
Id. at 572 (citation omitted). According to 42
Pa.C.S. § 5502, the statute of limitations begins to run when a cause of
action accrues. Regarding a claim of negligence, this Court has explained,
negligent act has been done. In this Commonwealth, the statute of
limitations for a negligence cause of action is triggered upon the occurrence
Bigansky v. Thomas Jefferson University
Hosp., 658 A.2d 423, 426 (Pa. Super. 1995) (citations omitted).
In the Declaratory Judgment Action, Nova Realty filed its original
joinder complaint against Appellee in November of 2008. In response to the
preliminary objections Appellee filed in that action, Nova Realty argued that
its claim against Appellee was ripe for adjudication. In fact, Nova Realty
specifically argued that it already had suffered an injury caused by
been
injured in that [it has] had to pay sums to defend the declaratory judgment
action. So, even if the court does find a requirement of an actual injury to a
Nova Realty clearly knew that it had a ripe cause of action against
Appellee in November of 2008. Nova Realty, however, did not file its
complaint against Appellee until July of 2011, which is beyond the two-year
- 11 -
J-A21035-14
statute of limitations. Accordingly, we conclude that Judge Moss correctly
det
Nova Realty has failed to convince this Court that Judge Moss erred by
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
- 12 -