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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENNA MARIE SCOTT, BY AND THROUGH IN THE SUPERIOR COURT OF
HER GUARDIAN AD LITEM, JUDITH PENNSYLVANIA
ALGEO, ESQUIRE
Appellant
v.
LOWER BUCKS HOSPITAL, LOWER
BUCKS HEALTH ENTERPRISES, INC.,
ADVANCED PRIMARY CARE PHYSICIANS,
BUCKS COUNTY INSURANCE COMPANY,
LT., PRIMARY HEALTH CARE SERVICES
(BRISTOL, PA) AND PRIMARY HEALTH
CARE SERVICES (ONTARIO, CA)
No. 2607 EDA 2014
Appeal from the Order August 27, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2013 No. 3662
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 30, 2015
Jenna Marie Scott, by and through her guardian ad litem, Judith Algeo,
Esquire, appeals from the order entered on August 27, 2014, in the Court of
Common Pleas of Philadelphia, transferring this action sua sponte to Bucks
County for the purposes of coordination with another lawsuit. Scott claims
the trial court lacked authority to transfer the matter sua sponte, and that
the trial court erred in applying the Pa.R.C.P. 213.1(c) factors. After a
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thorough review of the submissions by the parties,1 relevant law, and the
certified record, we reverse the order transferring the action. Additionally,
appellees motion to quash appeal as moot is denied.
We note initially that an order directing coordination of actions in
different counties is an interlocutory order appealable as of right.
Pa.R.A.P. 311(c); Richardson Brands, Inc. v. Pennsylvania
Dutch Co., Inc., 405 Pa. Super. 202, 592 A.2d 77 (1991);
Lincoln General Ins. Co. v. Donahue, 151 Pa. Cmwlth. 297,
616 A.2d 1076 (1992). We review an order coordinating actions
under [Pa.R.C.P.] rule 213.1[2] for abuse of discretion by the trial
court. Where the record provides a sufficient basis to justify the
order of coordination, no abuse of discretion exists. Richardson
Brands, Inc., 405 Pa. Super. at 208, 592 A.2d at 81.
Wohlson/Crow v. Pettinato Associated Contractors & Eng’rs, 666 A.2d
701, 703 (Pa. Super. 1995).
We derive the factual history from our review of the certified record,
and is as follows:
Prior to the institution of this action, Scott filed a medical malpractice
action in Bucks County against the instant defendants alleging her severe
birth defects were caused by the negligence of the defendants. However,
Lower Bucks Hospital was in bankruptcy. Procedurally, this would force the
negligence action to be stayed unless Scott agreed to proceed solely against
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1
Defendants/Appellees, Lower Bucks Hospital, et al, did not file a brief in
this matter. However, they did file a motion to dismiss the appeal as moot.
2
The trial court did not provide procedural authority for the basis of its sua
sponte order. We rely upon the standards set forth for Pa.R.C.P. Rule 213.1
because that is the rule governing transfer of cases for purpose of
coordination.
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available insurance coverage. Although claiming the possibility of damages
in excess of $100,000,000, Scott agreed to proceed solely against the limits
of insurance coverage. Subsequently, Scott filed the instant action in
Philadelphia County, claiming Lower Bucks Hospital had fraudulently induced
her to proceed against non-existent insurance limits.
On April 15, 2014, Lower Bucks Hospital filed a joinder complaint
against Scott’s counsel in both the medical negligence (Bucks County) and
fraud (Philadelphia County) cases. This joinder complaint alleged legal
malpractice against opposing counsel. Various preliminary objections and
amended joinder complaints followed, the specifics of which are immaterial
herein, except to note venue of the Philadelphia fraud action was never
contested. Next, on or about April 30, 2014, Scott sent her first set of
requests for admissions to Lower Bucks Hospital. Lower Bucks Hospital
responded on or about May 29, 2014. Scott then filed a motion to strike
those responses. Lower Bucks Hospital filed its response to the motion on or
about July 3, 2014. Neither the requests for admissions nor any of the
answers addressed the issue of venue. Nonetheless, on August 27, 2014,
the trial court issued its order regarding the motion to strike the responses
to the requests for admissions. The order contains no directive regarding
the request for admissions or the responses thereto. Rather, the trial court,
sua sponte, ordered the Philadelphia fraud/legal negligence matter
transferred to Bucks County for coordination with the medical negligence
case. Scott filed this timely appeal.
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On August 24, 2014, three days prior to the order transferring venue,
the medical negligence claim went to trial. That trial lasted until September
24, 2014 when the jury returned a verdict in favor of defendants. Post-trial
motions have been filed in that matter, and pending resolution of those
issues, an appeal to this Court could follow.
As noted above, the trial court provided no procedural basis to support
the sua sponte transfer of this matter from Philadelphia County to Bucks
County. However, the trial court did cite Pennsylvania Manufacturers’
Association Ins. Co.[PMAIC] v. The Pennsylvania State University, 63
A.3d 792 (Pa. Super. 2013) in support of its actions. PMAIC relied upon
Pa.R.C.P. 213.1 as the procedural foundation enabling the court to transfer
the case. In relevant part, Rule 213.1 states:
Rule 213.1. Coordination of Actions in Different Counties.
(a) In actions pending in different counties which involve a
common question of law or fact or which arise from the same
transaction or occurrence, any party, with notice to all other
parties, may file a motion requesting the court in which a
complaint was first filed to order coordination of the actions.
Any party may file an answer to the motion and the court may
hold a hearing.
Pa.R.C.P. 213.1(a).
While Rule 213.1 does provide the procedural basis to transfer cases
for purposes of coordination, it does not provide the ability of the trial court
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to do so on its own volition.3 The rule requires a party to formally request
the transfer by filing a motion and then serving notice of the motion to all
other parties. By acting unilaterally, the trial court ignored the requirements
that a party request the transfer and that all parties be given both notice
and the opportunity to respond. We have found no case law addressing this
situation, addressing the sua sponte transfer of a case to another jurisdiction
pursuant to Rule 213.1. Nonetheless, we have no hesitation in determining
that the plain language of the Rule does not grant the trial court the power
to act in such a manner.
We agree with Scott that this determination is bolstered by Horn v.
Erie Insurance Exchange, 540 A.2d 584 (Pa. Super. 1988), that
determined the trial court did not have inherent power to sua sponte
transfer a matter to another jurisdiction pursuant to Pa.R.C.P. 1006(d),
regarding forum non conveniens. In finding the trial court could not act
unilaterally, a panel of our Court noted that transfer pursuant to Rule
1006(d) required a petition be filed by any party. Accordingly, the trial court
abused its discretion “by sua sponte transferring venue to another forum
which, for reasons perceived by the transferring court, could more
conveniently decide the case.” Id. at 586. Similarly, Rule 213.1 requires
transfer to be initiated by a party and it follows that the Rule does not
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3
Compare Pa.R.C.P. 213, which allows the court to sua sponte consolidate
or coordinate actions that originated within in the same county.
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sanction sua sponte action based upon reasons perceived solely by the trial
court.
Finally, we note that generally, the law “vests great weight in the
plaintiff’s initial choice of forum.” Wilson v. Levine, 963 A.2d 479, 487
(Pa. Super. 2008). If we were to sanction the unilateral transfer of a case to
another forum, we would be improperly ignoring that directive. Accordingly,
the transfer of this matter from Philadelphia to Bucks County must be
reversed.
Based on the foregoing, we need not address Scott’s other claim that
the trial court erred substantively in transferring the case. Additionally,
because the matter was transferred without generating a record on the
factors to be considered, see Pa.R.C.P. 213.1(c), we would have no basis
upon which to rule.
Finally, based upon the fact that it prevailed in the underlying medical
negligence action, Lower Bucks Hospital has moved this Court to dismiss the
appeal as moot. It has been asserted that there are pending post-trial
motions and a potential appeal. Accordingly, the medical negligence action
has not concluded. Because there is still a chance Scott can prevail in the
medical negligence action, the issue of transfer is not moot.
Based on the foregoing, Lower Bucks Hospital’s motion to quash
appeal as moot is denied, and the August 27, 2014 order transferring this
matter to Bucks County is reversed and remanded to the Court of Common
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Pleas of Philadelphia County for action consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
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