J-A01008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRANDON F. WOMACK AND HOMELAND IN THE SUPERIOR COURT OF
INTELLIGENCE AND PROTECTIVE PENNSYLVANIA
SERVICES, LLC,
v.
NEIGHBORHOOD SECURITY PATROL AND
HARRY MEARING, III
Appellants
No. 1629 WDA 2015
Appeal from the Order October 1, 2015
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2015-4739
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 10, 2017
Neighborhood Security Patrol and Harry Mearing, III, appeal from the
October 1, 2015 order dismissing a lawsuit that they filed in Philadelphia
County and ordering that it be consolidated with this action, which was
instituted by Appellees Brandon F. Womack and Homeland Intelligence and
Protective Services, LLC.1 We reverse.
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1
We have jurisdiction over this interlocutory appeal pursuant to Pa.R.A.P.
311(c), which provides that “an appeal may be taken as of right from an
order in a civil action or proceeding changing venue, [or] transferring the
matter to another court of coordinate jurisdiction ...” Pa.R.A.P. 311(c). See
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court.
J-A01008-17
On August 3, 2015, Appellees instituted this case against Appellants in
the Court of Common Pleas of Washington County at docket number 2015-
4739, by filing a complaint and averring the following. On February 1, 2015,
Mr. Womack, Mr. Mearing, and Ashley Rodrigues, who was not a named
party, entered into a written agreement to operate and manage a limited
liability company with a registered business name of Homeland Intelligence
and Protective Services, LLC., with Mr. Womack as the managing member.
The agreement in question was attached to the complaint, and it indicated
that each party contributed capital. Pursuant to the terms of the accord, the
company was created to provide protection and investigation services to the
private sector.
In their complaint, Appellees also alleged the following. Each member
made the initial capital contributions to Homeland Intelligence and Protective
Services, LLC reflected in the agreement, and, as the company was being
operated, Mr. Womack made additional capital contributions in order to keep
it solvent. On May 8, 2015, the three members agreed to dissolve the
Homeland Intelligence and Protective Services, LLC. As part of that
dissolution, Mr. Womack and Mr. Mearing contractually agreed that Mr.
Mearing would pay Mr. Womack the amount of capital he contributed to the
_______________________
(Footnote Continued)
Digimatics, Inc. v. ABC Advisors, Inc., 760 A.2d 390, 391 n.1 (Pa.Super.
2000).
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company and that Mr. Womack could keep the name and business identified
as Homeland Intelligence and Protective Services, LLC. In the complaint,
Appellees claimed that Mr. Mearing did not pay Mr. Womack his capital
contributions and that Mr. Mearing continued to operate the same business
as Homeland Intelligence and Protective Services, LLC, but merely utilized
the name of Neighborhood Security Patrol, a fictitious name registered by
Mr. Mearing.
Appellees additionally set forth the following in their complaint. On
June 17, 2015, they filed a lawsuit in the magisterial district court located at
3441 Millers Run Road, Cecil, docketed at CV-58-15. Appellants thereafter
informed the magisterial district court and Appellees that they would be
filing a counter-claim against Appellees that would exceed the jurisdictional
limits of that court. The complaint thereafter states, “[P]ursuant to 42
Pa.C.S. § 5103,[2] Plaintiffs hereby timely file this action in the Court of
Common Pleas of Washington County, and will supplement this filing with
the certified record of the Magisterial District Court action.” Complaint,
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2
Section 5103 of Title 42, which is set forth in full in the text, infra,
requires a court, including a magisterial district court, that does not have
jurisdiction over a matter brought before it to transfer that matter to the
court with jurisdiction rather than dismiss it. Section 5103 also indicates
that the case will be considered as filed as of the date it was brought in the
incorrect court instead of when it was transferred.
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8/3/15, at 16. Appellees pled causes of action in breach of contract and
unjust enrichment.
On September 16, 2015, before service of process was achieved,
Appellees filed a motion to coordinate and consolidate actions pursuant to
Pa.R.C.P. 213.1. That rule controls the coordination and consolidation of
actions relating to the same subject matter and will be set forth, infra. In
the consolidation motion, it was averred that on June 21, 2015, Appellants
filed an action against Appellees in the Court of Common Pleas of
Philadelphia County that related to the same legal issues and pertinent facts.
Appellees‟ position was that they were the first to file a complaint regarding
the pertinent events, as follows. “This matter [i.e, docket number 2015-
4739 in the Court of Common Pleas of Washington County] was originally
initiated as a civil action by Plaintiffs against Defendants on June 17, 2015,
in the Magisterial District Court 27 – 03 -06 and docketed at CV – 58 -15.”
Motion to Coordinate and Consolidate Actions, 9/16/15, at ¶ 2. Appellees
continued that, on “June 21, 2015, Defendants filed a civil action against
Plaintiffs in the Court of Common Pleas of Philadelphia County, Pennsylvania,
related to the same legal issues and operative facts.” Appellees then noted
that, in the Philadelphia County action, “Defendants‟ claim is for an amount
in excess of the jurisdictional limits of the District Magistrate‟s Office.” Id. ¶
4. Appellees next averred that “to facilitate subject matter jurisdiction,
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Plaintiffs timely filed [the present] action in the Washington County Court of
Common Pleas of Washington County[.]” Id. at ¶ 5.
In requesting consolidation in the Court of Common Pleas of
Washington County under Pa.R.C.P. 213.1, Appellees maintained that
“pursuant to 42 Pa.C.S. § 5103, when the Magisterial District lacks
jurisdiction over the action, it shall not quash or terminate the action, but
rather the action should be transferred or re-filed in [the] appropriate court
and shall be deemed filed on the date the action was first filed in the
Magisterial District.” Id. at 8. Appellees averred that, due to the complaint
filed in magisterial district court, they were the first to file a complaint
regarding the subject matter of the two lawsuits, and that the Philadelphia
action should be consolidated with the present one.
Appellants filed an answer and memorandum of law in opposition to
the motion to coordinate and consolidate. Appellants asked that this lawsuit
be transferred and consolidated with the Philadelphia County action that
they had instituted at docket number June Term, 2015, number 2642.
Appellants noted that they filed their complaint on June 19, 2015, not June
21, 2015, as stated by Appellees. A copy of the complaint presented in the
Philadelphia lawsuit was attached to Appellants‟ motion, It concerns the
same subject matter as this lawsuit, and was filed on June 19, 2015.
Appellants then denied that Appellees brought a case in the
magisterial district court against Appellants, and attached as an exhibit to
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the response to the consolidation motion a copy of the civil complaint filed
by Appellees at CV-58-15 on June 17, 2015, in the magisterial district court.
That complaint was filed by Mr. Womack alone, the sole defendant was Mr.
Mearing, and Mr. Womack asked for a “judgment against [Mr. Mearing] for
$12,000 together with costs.” Defendants[‟] Answer to Plaintiff[s‟] Motion
to Coordinate and Consolidate Actions, 10/1/15, at Exhibit B page 1.
Appellants further noted that service of process was never achieved in the
magisterial district court matter, which remained pending, and that the
magisterial district court never transferred the case to any other court.
On October 1, 2015, the trial court herein granted Appellees‟ motion to
consolidate and coordinate and ordered that the Philadelphia County case be
terminated and consolidated with this lawsuit. The court accepted the
premise that Appellees had filed a complaint first concerning the subject
matter of the two lawsuits when Mr. Womack filed the complaint in the
magisterial district court on June 17, 2015, and it reasoned that the June 17,
2015 magisterial district court case had been transferred to this action.
Appellants filed this timely appeal from the October 1, 2015 order, and
raise these issues:
1. Whether the trial court committed an error of fact and/ or law
and/ or abused its discretion in exercising personal jurisdiction
over the Appellants as Appellees failed to perform original
service of process?
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2. Whether the trial court committed an error of fact and/ or law
and/ or abused its discretion in applying Pa.R.C.P. §5103 [sic],
transfer of erroneously filed matters.
3. Whether the trial court committed an error of fact and/ or law
and/ or abused its discretion in failing to apply Pa.R.C.P. §213.1
factors in coordinating actions in different counties?
Appellants‟ brief at 4.
We conclude that the trial court committed legal error in holding that
the complaint herein was filed before the one in Philadelphia County, and
therefore hold that its October 1, 2015 order dismissing the Philadelphia
action and ordering its consolidation with this case must be reversed. We
find that the complaint in Philadelphia was filed first, and thus, the trial court
herein did not have jurisdiction to decide the coordination issue. In light of
this determination, we do not need to address the first issue raised in this
appeal.
Initially, we observe that: “We review an order coordinating actions for
abuse of discretion by the trial court.” Dillon McCandless King Coulter &
Graham, LLP v. Rupert, 81 A.3d 912, 918 (Pa.Super. 2013) (citation
omitted). A trial court commits an abuse of discretion when it fails to
properly apply the applicable law. In re Adoption of A.P., 920 A.2d 1269,
1273 (Pa.Super. 2007) (citation and quotation marks omitted; emphasis
added) (“An abuse of discretion occurs when the course pursued represents
not merely an error of judgment, but where the judgment is manifestly
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unreasonable or where the law is not applied or where the record shows
that the action is a result of partiality, prejudice, bias or ill will.”).
Herein, the Washington County Court of Common Pleas ordered
coordination of the Philadelphia court proceeding with the action herein
pursuant to Pa.R.C.P. 213.1, which states:
(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.
(b) The court in which the complaint was first filed may
stay the proceedings in any action which is the subject of the
motion.
Pa.R.C.P. 213.1 (emphases added). The comment to this rule delineates,
“Subdivision (a) provides the procedure for obtaining an order of
coordination: motion, answer and hearing. The procedure is deliberately left
general and flexible. The two stated requirements are that the motion must
be „with notice to all other parties‟ and that the request be made to ‘the
court in which a complaint was first filed.’” Pa.R.C.P. 213.1
Explanatory Comment-1990 (emphasis added). The comment continues,
“The court in which the first complaint was filed establishes a forum for
the coordination proceedings.” Id. (emphasis added).
In this case, there is no apparent dispute that the action instituted by
Appellants in Philadelphia County concerns the same transactions, parties,
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and facts as those in this lawsuit. The critical inquiry is which complaint was
filed first. As noted, Appellees‟ position was that their complaint was filed
first because it was filed in the magisterial district court on June 17, 2015,
two days before Appellants‟ Philadelphia case. Appellees‟ consistent position
has been that, by filing this lawsuit, they transferred the magisterial district
court case to the Washington County Court of Common Pleas because it was
erroneously filed at the magisterial district court as the amount at issue
exceeded that court‟s jurisdiction. Appellees have insisted that the date of
the filing of the magisterial district court case, June 17, 2015, must be used
in determining whether Appellee‟s complaint or the one in Philadelphia,
which was filed on June 19, 2015, was filed first. In ordering that the
Philadelphia case be dismissed and that the matter proceed in Washington
County, the court accepted Appellees‟ premises.
There are three fatal flaws in Appellees‟ position. First, the action filed
in the magisterial district court was within its jurisdiction. The record
establishes that Mr. Womack asked for a judgment in the amount of
$12,0003 plus interest and costs in that court, and, under 42 Pa.C.S. §
1515(a)(3), “magisterial district judges shall . . . have jurisdiction of . . .
[c]ivil claims . . . wherein the sum demanded does not exceed $12,000,
____________________________________________
3
While Mr. Womack averred that Mr. Mearing owed him approximately
$18,000, Mr. Womack did not seek a judgment in that amount against Mr.
Mearing.
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exclusive of interest and costs[.]” In their motion to consolidate and
coordinate, Appellees admitted that Appellants did not file a counter-claim in
the magisterial district court that deprived it of jurisdiction. They took the
legally incorrect position that the action filed in the Court of Common Pleas
of Philadelphia County constituted a counterclaim to the complaint filed in
the magisterial district court, that the Philadelphia Court case involved an
amount in excess of the jurisdictional limits of the magisterial district court,
and the magisterial district court was thereby deprived of jurisdiction due to
the filing of the Philadelphia lawsuit.
This factual posture is legally untenable. An action filed in a court of
common pleas simply does not and cannot constitute a counterclaim in
another case filed in a different county before another court. Thus, the
magisterial district court did have jurisdiction over the claim filed before it,
and there was no pending counterclaim before the magisterial district that
deprived it of jurisdiction. Contrary to Appellees‟ stance, because the court
had jurisdiction, the magisterial district court matter could not be transferred
pursuant to 42 Pa.C.S. § 5103, which provides:
If an appeal or other matter is taken to or brought in a
court or magisterial district of this Commonwealth which
does not have jurisdiction of the appeal or other matter,
the court or magisterial district judge shall not quash such
appeal or dismiss the matter, but shall transfer the record
thereof to the proper tribunal of this Commonwealth,
where the appeal or other matter shall be treated as if originally
filed in the transferee tribunal on the date when the appeal or
other matter was first filed in a court or magisterial district of
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this Commonwealth. A matter which is within the exclusive
jurisdiction of a court or magisterial district judge of this
Commonwealth but which is commenced in any other tribunal of
this Commonwealth shall be transferred by the other tribunal to
the proper court or magisterial district of this Commonwealth
where it shall be treated as if originally filed in the transferee
court or magisterial district of this Commonwealth on the date
when first filed in the other tribunal.
42 Pa.C.S. § 5103 (emphases added).
The second critical problem with Appellees‟ position is that the
magisterial district court never transferred its case to this docket number.
To the contrary, Appellees instituted the action before the magisterial district
court, and then separately filed this lawsuit in the Court of Common Pleas of
Washington County. In their complaint, Appellants alleged that, by
instituting this lawsuit, they had transferred the case under 42 Pa.C.S. §
5103 from the magisterial district court to the court of common pleas.
Simply put, they did not have the authority to undertake this action. The
statute in question clearly accords that power only to the court. In addition,
filing a separate action in a different court does not constitute a “transfer.”
Thus, Appellees did not transfer the magisterial district court matter to the
Washington County Court of Common Pleas when they filed the complaint at
docket number 2015-4739.
In summary, the record herein establishes conclusively that the
magisterial district court not only had jurisdiction over the complaint filed by
Mr. Womack, it did not transfer the matter to this civil action. Thus, the
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complaint in civil action 2015-4739 in the Court of Common Pleas of
Washington County was filed on August 3, 2015, and the complaint at
docket number 2642, June Term, 2015, in the Philadelphia Court of Common
Pleas was filed on June 19, 2015. The Philadelphia County complaint was
filed first, and Pa.R.C.P. 213.1 firmly places jurisdiction over a request for
consolidation and coordination in the court where the complaint was first
filed. Since the Philadelphia complaint was filed before the complaint herein,
the trial court in this lawsuit did not have jurisdiction to decide the
coordination issue under Pa.R.C.P. 213.1, and it should have transferred that
request to the Philadelphia County Court of Common Pleas action filed at
docket number 2642, June Term, 2015.
The final reason that Appellees improperly prevailed in the trial court
pertains to application of Digimatics, Inc. v. ABC Advisors, Inc., 760
A.2d 390 (Pa.Super. 2000). In that case, the parties filed countervailing
lawsuits concerning the same subject matter. Both parties filed their cases
in the magisterial district courts, but in different counties. ABC‟s action
before the magisterial district court was instituted first in Franklin County
while Digimatics‟ case was filed before a magisterial district court in
Delaware County. Both parties obtained default judgments before the
magisterial district courts, and both judgments were appealed to the
respective courts of common pleas.
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Then, Digimatics filed its complaint in the Court of Common Pleas of
Delaware County while ABC later filed a complaint in the Court of Common
Pleas of Franklin County. Thus, although ABC filed a complaint with the
magisterial district court first, Digimatics filed its complaint first in the court
of common pleas. Both parties presented countervailing motions to
consolidate under Pa.R.C.P. 213.1. The Franklin County court decided that
Digimatics was the first one to file a complaint and concluded that the
consolidation motion had to be decided in Delaware County, where the first
complaint was filed. The Franklin County court stayed the Franklin County
litigation and transferred the matter to Delaware County.
On appeal, we affirmed. This Court held, “When read in the context of
the rule as a whole, we conclude that „court‟ unambiguously refers to the
court of common pleas and not the district justice.” Id. at 392. We
continued that the “court to which the motion to coordinate is directed is the
same court in which the complaint is first filed.” Id. at 393. The Digimatics
Court then ruled that, since a motion to consolidate “can be directed only to
a court of common pleas, we must look to that court to determine which
complaint is filed first. This necessarily excludes consideration of filings with
the district justice. Thus, we conclude that Rule 213.1 contemplates
consideration only of complaints filed in the Courts of Common Pleas.” Id.
(footnote omitted). We expressly held that “for purposes of deciding a
motion under Pa.R.C.P. 213.1(a), the court should look to the complaint first
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filed in the court of common pleas, regardless of what may previously
have transpired before a district justice.” Id. (emphasis added). We
therefore affirmed the transfer of the Franklin County case to the Delaware
County one.
In the present matter, under the Digimatics decision, anything that
transpired at the magisterial district justice is irrelevant. Accordingly, the
fact that Mr. Womack sued Mr. Mearing on June 17, 2015, in magisterial
district court is not considered for purposes of applying Pa.R.C.P. 213.1.
Digimatics likewise confirms the fact that the court where a complaint was
filed first is the court with jurisdiction to consider the coordination issue.
Hence, the trial court herein did not have jurisdiction to hear the
consolidation motion and is directed to transfer consideration of the
consolidation issue to the Court of Common Pleas of Philadelphia County at
docket number 2642, June Term, 2015, for resolution.
Order reversed. Case remanded for proceedings consistent with this
adjudication. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/17
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