J-A19022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRAVELERS CASUALTY AND SURETY                  IN THE SUPERIOR COURT OF
COMPANY OF AMERICA                                   PENNSYLVANIA

                   v.

REGINELLA CONSTRUCTION COMPANY,
LTD.; REGCON CORP.; REGINELLA
CONSTRUCTION COMPANY, INC.;
JOSEPH A REGINELLA; AND DONNA M.
REGINELLA, INDIVIDUALS

                   v.

MOON AREA SCHOOL DISTRICT AEGIS
SECURITY INSURANCE COMPANY;
DERRY AREA SCHOOL DISTRICT; OHIO
TURNPIKE COMMISSION; 21ST CENTURY
CONCRETE CONSTRUCTION INC.; J. J.
CONNOR CO., INC.; BCS CONTRACTORS,
INC.; GIVENS CONSTRUCTION, LLC;
MOHAWK RE-BAR SERVICES, INC.; THE
WHITACRE ENGINEERING CO.: P&L
PARIS CORPORATION; AND LEWIS LAND
PROFESSIONALS, INC.

APPEAL OF: REGINELLA CONSTRUCTION
COMPANY, LTD., REGINELLA
CONSTRUCTION COMPANY, INC.,
JOSEPH A. REGINELLA AND DONNA M.
REGINELLA
                                                   No. 1599 WDA 2013


               Appeal from the Order of September 19, 2013
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 12-012196


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 05, 2014




* Former Justice specially assigned to the Superior Court.
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      Appellants,   Reginella   Construction   Company,     Ltd.,   Reginella

Construction Company, Inc., Joseph A. Reginella, and Donna M. Reginella,

appeal from the order entered on September 19, 2013.         We quash this

appeal.

      On July 16, 2012, Travelers Casualty and Surety Company of America




following.   Reginella Construction Company, Ltd. (hereinafter individually

       ) is a general contractor that is engaged in construction within the



7/16/12, at ¶ 8. In 2009, Appellants approached Travelers and requested

that Travelers issue them surety bonds for their public and private

construction projects.   Id. at ¶ 10.   Travelers then issued certain surety




the Derry Area School District (in Pennsylvania).    Id. at ¶ 16.    Further,

Appellants and Travelers executed a general agreement of indemnity,



                                                             Id. at ¶ 14.




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     According to Travelers, Appellants defaulted upon the construction

contracts with the Ohio Turnpike Commission and the Moon Area School

District by doing such things as:     failing to pay their subcontractors and

suppliers for work performed and material furnished on the projects; failing

to complete the work on the projects in a competent and timely manner;

and, improperly staffing the work sites.    Id. at ¶¶ 19-64.   As a result of

these defaults, Appellants defaulted under the terms of the Traveler

bonds and, moreover, exposed Travelers to liability under the bonds.

Travelers thus levied a number of claims against Appellants, including:

breach of contract, common law indemnification, contractual indemnification,

and exoneration. Id. at ¶¶ 65-85.



Counterclaim, and Complaint to Join Additional Defendants Pursuant to 42

Pa.C.S.A. §

asserted five counterclaims agains                                     -party



the three-party bond agreement for the Ohio Turnpike [Commission]

                                   -party bond agreement for the Derry [Area



indemnification agreement] and the implied covenant of good faith and fair



to Join, 12/21/12, at ¶¶ 67-105.




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J-A19022-14




contractual claims against a host of additional defendants, including:    the

Ohio Turnpike Commission, various subcontractors on the Ohio Turnpike

project, the Moon Area School District, and the Derry Area School District.

Id. at 149-265.

     On January 23, 2013, the Ohio Turnpike Commission filed preliminary



objections, the Commission asserted a number of grounds for relief.       The




Pennsylvania courts lack subject matter jurisdiction over the Commission.

The Commission                                               21-26.    As the



and be sued . . . in the court of common pleas of the county in which the

principal office of the commission is located, or in the court of common pleas

of the county in which the cause of action arose if that county is located

                  Id. at ¶ 22; Ohio Rev. Code § 5537.04(a). Since Appellants

did not bring their action against the Commission in either of the two

designated fora, the Commission claimed that the complaint against it must



Preliminary Objections, 1/23/13, at ¶¶ 21-26.

     The Commission also claimed that the trial court must dismiss

Appellants                                                  Id. at ¶¶ 27-30.

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Specifically, the Commission claimed its contract with Appellants contains a



[between the parties] shall be brought only in the court of common pleas of

Cuyahoga County, Ohio or of the county in the State in which the Project is

                                                                         Id. at

¶ 29.

        On September 19, 2013, the trial court issued a memorandum and

or

above-summarized preliminary objections.       Thus, the trial court concluded



upon lack of subject matter jurisdiction and the forum selection clause. Trial

Court Memorandum and Order of Court, 9/19/13, at 2-5.

        Notwithstanding the fact that the underlying lawsuit is still ongoing



Turnpike Commission        on October 7, 2013, Appellants filed a notice of



claim that the trial court erred in dismissing its complaint against the

Commission. We, however, lack jurisdiction to consider the current appeal.



whether the [order appealed from] is properly appealable, because the



Commonwealth v. Borrero

general rule is that, unless otherwise permitted by statute, only appeals

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J-A19022-14



                                                           Commonwealth v.

Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). In relevant part, Pennsylvania



                                                                 1




not final, as it

Turnpike Commission; all of the other parties and claims in the case remain

active and pending in the trial court.           Therefore, the current order

constitutes a non-final, interlocutory order.

       Interlocutory orders are appealable in certain circumstances.        Our

Supreme Court has explained:

         in addition to an appeal from final orders of the Court of
         Common Pleas, our rules provide the Superior Court with
         jurisdiction in the following situations: interlocutory appeals
         that may be taken as of right, Pa.R.A.P. 311; interlocutory
         appeals that may be taken by permission, Pa.R.A.P. [312];
         appeals that may be taken from a collateral order, Pa.R.A.P.
         313; and appeals that may be taken from certain

         342.




____________________________________________


1



                                                                           e two
categories are not applicable to the current appeal.




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J-A19022-14



Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal

quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d

345, 349 n.6 (Pa. 2002).

      Here, Appellants did not ask for or receive permission to appeal the

interlocutory order (per Pa.R.A.P. 312) and Appellants have not provided this

Court with any argument as to whether        or how   the order could satisfy

the collateral order doctrine (per Pa.R.A.P. 313).

      Appellants do, however, claim that the September 19, 2013 order is

appealable under Pennsylvania Rule of Appellate Procedure 311(c). This rule

declares:

        (c) Changes of venue, etc. An appeal may be taken as of
        right from an order in a civil action or proceeding changing
        venue, transferring the matter to another court of
        coordinate jurisdiction, or declining to proceed in the matter
        on the basis of forum non conveniens or analogous
        principles.

Pa.R.A.P. 311(c).

      The note to Rule 311(c) provides further explanation as to the types of

orders to which the rule applies:

        Subdivision (c) covers orders that do not sustain venue,
        e.g., orders under Pa.R.C.P. 1006(d) and (e).

        However, the subdivision does not relate to a transfer under
        42    Pa.C.S. § 933(c)(1) (concurrent and exclusive
        jurisdiction), 42 Pa.C.S. § 5103 (transfer of erroneously
        filed matter) or under any other similar provision of law,
        beca

        that there shall be no right of appeal from a transfer order
        based on improper subject matter jurisdiction. Such orders

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J-A19022-14


         may be appealed by permission under [Pa.R.A.P.] 312, or
         an appeal as of right may be taken from an order dismissing
         the matter for lack of jurisdiction. Balshy v. Rank, 490
         A.2d 415 (Pa. 1985).

         Other orders relating to subject matter jurisdiction (which
         for this purpose does not include questions as to the form of
         action, e.g., as between law and equity, or divisional
         assignment, see 42 Pa.C.S. § 952 (status of court
         divisions)) will be appealable under Rule 341 if jurisdiction
         is not sustained, and otherwise will be subject to Rule 312.

Pa.R.A.P. 311(c) note.

       At the outset, we reiterate the fact that the trial court dismissed



clause and because it concluded that it lacked subject matter jurisdiction

over the action. Hence, even if we were to conclude that we had jurisdiction




error, we would still be unable to provide Appellants with any practical relief

in this case.     This is because we unquestionably have no jurisdiction to



jurisdiction grounds.2 Therefore, even if the trial court erred in dismissing
____________________________________________


2

effectively a ruling on venue based on the venue provision of the Ohio



                                                                  diction
over that portion of the order. See, e.g., Sheard v. J.J. DeLuca Co., 92

competency of a court to hear and decide the type of controversy
(Footnote Continued Next Page)


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the complaint on the basis of the forum selection clause, the complaint

would remain dismissed

jurisdiction ruling.

      Regardless, we conclude that Rule 311(c) does not encompass the trial



its entirety.

      When the trial court determined that the forum selection clause



in Ohio, the trial co



lack authority to transfer cases to the courts of our sister states, dismissal of

the action is the only permissible resul            Alford v. Phila. Coca-Cola

Bottling Co., 531 A.2d 792, 794 (Pa. Super. 1987).                As Rule 311(c)

declares, it allows for an interlocutory appeal as of right from an order

 changing venue, transferring the matter to another court of coordinate

jurisdiction, or declining to proceed in the matter on the basis of forum non
                       _______________________
(Footnote Continued)

                                      ned above, we clearly do not possess subject

subject matter jurisdiction grounds. Therefore, we simply have no power to
consider the portion of the order dismissing the complaint on subject matter
jurisdiction grounds and we have no power to determine whether the trial

                                      See In re Adoption of Z.S.H.G., 34
A.3d 1283,                              subject matter jurisdiction concerns
the court's authority to consider cases of a given nature and grant the type




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conveniens




                                       and it did so because of a contractual

provision that required Appellants to bring its action against the Commission

in Ohio.

                                                                          the

basis of forum non conveniens

As our Supreme Court has held, the doctrine of forum non conveniens

permits a court to



                                                                   Bratic v.

Rubendall, ___ A.3d ___, 2014 WL 4064028, at *4 (Pa. 2014), quoting

Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997)

(internal quotations omitted).



                                                                           n

the Ohio courts of common pleas           not because of any concerns about

oppressiveness or vexation to the defendant. Id.

thus analogous to the dismissal of a complaint based upon the lack of

subject matter jurisdiction      and, as we have explained, Pennsylvania Rule




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J-A19022-14



of Appellate Procedure 311 does not encompass such an order.   We must

therefore quash this appeal.

     Appeal quashed.

     Bender, P.J.E., joins the memorandum.

     Fitzgerald, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2014




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