J-A17002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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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