J-A04045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID E. KISSLING IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
EMMA SINGH, ROBERT SINGH, AND
HEALTHCARE EVOLUTION, LLC
Appellants No. 1203 MDA 2017
Appeal from the Order Entered July 11, 2017
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-13855
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 03, 2018
Appellants, Emma Singh, Robert Singh, and Healthcare Evolution, LLC
(“Healthcare Evolution”), appeal from the trial court’s order entered July 11,
2017, granting the motion of Appellee David E. Kissling to coordinate two
actions in Berks County and Montgomery County. We affirm.
We adopt the following procedural history from the trial court opinion,
which in turn is supported by the record. See Trial Court Opinion (TCO),
9/20/17, at 1-5. We further note that, as this matter has not yet preceded to
trial, the facts are confined to allegations in the respective complaints.
Appellants Robert Singh, a medical doctor, and Emma Singh, a medical doctor
and pharmacist, founded Healthcare Evolution, a home infusion, drug
compounding, medical supply, and pharmacy business. Appellee David
* Retired Senior Judge Assigned to the Superior Court.
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Kissling was involved in the marketing and sale of medical services and
devices. Although Appellants and Appellee worked together for a time, their
business relationship soon soured. The reasons for this falling out are
represented very differently by the parties in two separate actions.
In June 2015, Appellee filed a complaint in Berks County against the
Singhs and Healthcare Evolution, asserting claims for breach of contract,
unjust enrichment, violation of the Wage Payment and Collection Law
(“WPCL”), and fraudulent concealment. He alleged that he had orally
contracted with Appellants to provide sales and marketing services to
Healthcare Evolution in exchange for a one-third ownership interest in the LLC
if and when revenue doubled. Due to a client referral resulting in a three
million dollar increase in revenue, Appellee averred he was to become a 1/3
owner with a $12,500.00 per month salary. Nevertheless, in April 2015,
Appellants informed Appellee they were terminating the agreement and that
Appellee would not receive an ownership interest or salary.
In May 2017, Appellants filed a complaint in Montgomery County against
Appellee, Professional Pharmacy & Convalescent Products, LTD, and two
additional defendants. The complaint raised claims for tortious interference
with current and prospective economic advantage, unfair competition, aiding
and abetting tortious conduct, and fraud. Essentially, Appellants claimed that
at the time he was hired, Appellee grossly misrepresented his work experience
and contacts. Appellants contend that as a result of these misrepresentations,
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they ended their affiliation with him. Appellee then allegedly used Healthcare
Evolution’s confidential information to poach customers.
Appellee filed a motion in Berks County seeking to coordinate the two
actions, which the court granted. The Montgomery County action was to be
transferred to and consolidated with the Berks County action.
Appellants timely appealed1 and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court issued a
responsive opinion.
On appeal, Appellants raise the following questions for our review:
1. Whether the Montgomery County action and the Berks County
action (collectively hereafter the “Actions”) should be consolidated
in Berks County, pursuant to Rule 213.1, Pa.R.Civ.P.
A. Whether, pursuant to Rule 213.1, the two actions
have common questions of fact at issue.
B. Whether, pursuant to Rule 213.1, the common
questions of fact at issue in the two actions are also
significant and predominating in both actions.
C. Whether consideration of the other factors set
within Rule 213.1 favor coordination of the actions in
Berks County.
Appellants’ Brief at 4 (unnecessary capitalization and answers omitted).
Appellants argue that the court erred in coordinating the two actions.
See Appellants’ Brief at 23. Essentially, Appellants argue the court should
____________________________________________
1While an order transferring venue is interlocutory, it is appealable as of right.
See Pa. Mfrs.’ Ass'n. Ins. Co. v. Pa. State Univ., 63 A.3d 792, 793 n.1
(Pa. Super. 2013); see also Pa.R.A.P. 311(c).
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have engaged in a two-step analysis, i.e., first determining whether the
actions constituted common questions of fact or law, before considering the
other factors outlined in Pa.R.C.P. 213.1. Id. Additionally, Appellants claim
that the actions do not concern common questions, as the Berks County action
concerns the terms of and performance under an alleged oral agreement, and
the facts in the Montgomery County action pertain to Appellee’s alleged use
of confidential business information. Id. Appellants claim the business
relationship between Appellants and Appellee is not an issue of fact significant
and predominant to both actions. Id.
We review an order coordinating actions for abuse of discretion by the
trial court, and
[w]here the record provides a sufficient basis to justify the order
of coordination, no abuse of discretion exists. Whether we would
have reached the same conclusion is immaterial. In exercising its
discretion, the trial court should receive guidance not only from
the enumerated [Rule 213.1(c) ] criteria . . . but also from the
explanatory comment to Rule 213.1(c), which explains that the
ultimate determination that the court must make is
whether coordination is “a fair and efficient method of
adjudicating the controversy.”
Pa. Mfrs.' Ass'n Ins. Co., 63 A.3d at 794–95 (internal citations and
quotations omitted).
Pa.R.C.P. 213.1 provides, in relevant part:
(c) In determining whether to order coordination and which
location is appropriate for the coordinated proceedings, the court
shall consider, among other matters:
(1) whether the common question of fact or law is
predominating and significant to the litigation;
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(2) the convenience of the parties, witnesses and
counsel;
(3) whether coordination will result in unreasonable
delay or expense to a party or otherwise prejudice a
party in an action which would be subject
to coordination;
(4) the efficient utilization of judicial facilities and
personnel and the just and efficient conduct of
the actions;
(5) the disadvantages of duplicative and inconsistent
rulings, orders or judgments;
(6) the likelihood of settlement of the actions without
further litigation should coordination be denied.
See Pa.R.C.P. 213.1(c).
In matters of coordination, and particularly in determining whether the
common question of fact or law is predominating and significant to the
litigation, the case law is unfortunately sparse and light on analysis.
In Wohlsen/Crow v. Pettinato Associated Contractors & Eng’rs,
Inc., 666 A.2d 701, 702 (Pa. Super. 1995), two actions were filed in a matter
that was at its heart a breach of contract case. Id. The first was an action in
equity to prevent the plaintiff from terminating a subcontract, and the second
was an action in assumpsit filed by the defendant in the primary case. Id.
Neither party challenged whether there was a common question of law or fact;
instead, the issue was whether the venue was properly in Schuylkill County.
Id.
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In Pa. Mfrs.’ Ass'n Ins. Co., an insurance company filed a declaratory
judgment action in Philadelphia County seeking a declaration that its
obligation to defend and indemnify the Pennsylvania State University was
more limited than Penn State had claimed. Pa. Mfrs.’ Ass’n Ins. Co., 63
A.3d at 793. Penn State filed a countersuit for breach of contract and bad
faith in Centre County. Id. at 794. The trial court coordinated the actions in
Philadelphia County. Id. Here, there was again no dispute that there was a
common question of law and fact, as the two cases were related through the
central question of the scope of insurance coverage and whether the insurance
company had a duty to defend, or had breached its contract. Id. at 795.
Again, the sole dispute was the county in which the action should be
coordinated. Id.
Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271,
1273 (Pa. Super. 2010), involved a multi-district class action lawsuit to
determine whether appellants, drivers for FedEx, were properly classified as
independent contractors or employees. Id. Several drivers filed individual
actions in Philadelphia County, asserting similar claims against FedEx. Id. at
1273-74. Again, neither party challenged whether there were common
questions of law and fact – there clearly were – but the dispute centered
around whether the actions were properly coordinated in the class action’s
district. Id.
In Trumbauer v. Godshall, 686 A.2d 1335, 1335-56 (Pa. Super.
1997), the court consolidated two cases in which the plaintiff had been initially
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treated at a hospital in Philadelphia County and later underwent surgery at a
hospital in Bucks County. Id. After suing both hospitals, the actions were
properly consolidated in Philadelphia, as the second surgery was necessitated
by deficiencies in the first treatment. Id. There was, again, no dispute as to
whether there were common questions of law and fact, the parties were
instead arguing over whether discovery was necessary to determine whether
consolidation would inconvenience the parties. Id. at 1336.
By contrast, in Dillon McCandless King Coulter & Graham, LLP v.
Rupert, 81 A.3d 912, 920 (Pa. Super. 2013), the coordination of a declaratory
judgment action with a legal malpractice action was improper because there
were not common questions of law or fact predominating in both actions. Id.
The validity of an agreement in the declaratory judgment action was unrelated
to whether an attorney was liable for his actions in connection with obtaining
the plaintiff’s assent to the agreement. Id.
Here, the trial court noted:
There is substantial commonality in the factual questions raised
by the two actions. Appellants characterize the two actions as
distinct largely because the facts at issue cover separate time
periods; they argue the Berks action deals with the formation and
conduct of the business relationship, while the Montgomery action
deals with [Appellee’s] behavior after the relationship ended. But
the two complaints plainly both include allegations covering the
formation of the business relationship between [Appellee] and
Healthcare Evolution and the conduct of that relationship. The
allegations are at odds but address exactly the same topics over
the same period of time: the nature of [Appellee’s] experience in
marketing medical products and services, [Appellee’s] use of
Healthcare Evolution office space and business cards, [Appellee’s]
hiring of an administrative assistant, and [Appellee’s] success or
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failure in establishing new contacts, lines of business, and
revenue. Appellants’ assertion that the Montgomery action deals
only with actions taken after the affiliation ended is particularly
disingenuous in light of the fraud claim. The only
misrepresentations identified under Count IV of the Montgomery
complaint, the fraud count, are [Appellee’s] representations about
his experience “[p]rior to affiliating with Healthcare Evolution,” his
representations about his marketing efforts “[w]hile affiliated with
Healthcare Evolution,” and his representations about his
intentions “[w]hile affiliated with Healthcare Evolution.” . . . These
facts all precede the end of the business relationship and are
involved in both actions.
See TCO at 6-7. The court also noted that Appellee’s breach of contract claim
might fail if he did not keep up his end of the bargain by creating new revenue.
Id. Essentially, the common question was “whether [Appellee] was an
experienced medical marketer who performed well for Healthcare Evolution or
an inexperienced individual who failed to generate business for the company.”
Id. Thus, the court concluded that there were common questions of fact and
that these common questions were predominating and significant.
Additionally, the court concluded that 1) the proceedings have already
been going for nearly two years and it would be wasteful for a new court to
get up to speed; 2) substantial discovery has already been undertaken and
coordinating discovery efforts should benefit all parties; 3) Berks and
Montgomery Counties are close enough that there is no location-based
detriment to the parties; 4) the only delay is to Appellants’ right to appeal but
that right exists in every instance of an application to coordinate actions. See
TCO at 7-8.
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As these findings are supported by the record, we decline to find that
the court abused its discretion in coordinating these actions and particularly
in coordinating them in Berks County. See Pa. Mfrs.’ Ass'n Ins. Co., 63
A.3d at 794–95.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2018
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