J-S68044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JENNIFER LOCK HOREV                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

K-MART #7293: SEARS BRANDS, LLC,
SEARS HOLDING CORPORATION: KMART
HOLDING CORPORATION AND KMART
CORPORATION

                          Appellants                 No. 259 EDA 2015


                Appeal from the Order December 19, 2014
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): 0389 December Term 2013


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 23, 2015

     Appellants,     K-Mart   #7293,   Sears   Brands,   LLC,   Sears   Holding

Corporation: Kmart Holding Corporation, and Kmart Corporation (collectively

K-Mart), appeal from the December 19, 2014 order denying their petition to

strike a discontinuance filed by Appellee, Jennifer Lock Horev. After careful

review, we affirm.

     We summarize the procedural history of this case as follows.           On

December 3, 2013, Horev began this action by filing a complaint in the trial

court, seeking damages as a result of injuries she sustained when she

slipped and fell at a K-Mart store in Clifton Heights, Pennsylvania.        On

January 2, 2014, K-Mart removed the action to the United States District
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Court for the Eastern District of Pennsylvania.         See generally 28 U.S.C.

§ 1446(a). After removal, the parties entered into a stipulation, approved

by the District Court, that the amount in controversy in the case was less

than $75,000.00.       See generally id. § 1332(a).         As a result, the District

Court remanded the case back to state court.                 Once the record was

returned, Horev underwent additional surgeries stemming from her alleged

injuries sustained from her slip-and-fall. On November 5, 2014, Horev filed

a   praecipe    to   discontinue     her   case   without   prejudice   pursuant   to

Pennsylvania Rule of Civil Procedure 229.1 On November 12, 2014, K-Mart

filed a petition to strike the discontinuance, which the trial court denied on

December 19, 2014.         On January 9, 2015, K-Mart filed a timely notice of

appeal.2

       On appeal, K-Mart raises the following two issues for our review.

               A.    Did the [t]rial [c]ourt abuse it’s [sic] discretion
                     in denying [K-Mart]’s [p]etition to [s]trike [o]ff
                     the [d]iscontinuance pursuant to Pa.R.C.P.
____________________________________________
1
  On November 17, 2014, Horev filed a new complaint in the Eastern
District. K-Mart filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for want of subject matter jurisdiction, based on the
prior stipulation. The District Court granted K-Mart’s motion to dismiss on
August 17, 2015. Horev v. K-Mart #7293, --- F. Supp. 2d ---, 2015 WL
4886429 (E.D. Pa. 2015). Horev has an appeal pending in the Court of
Appeals.
2
  The trial court did not order K-Mart to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court filed its Rule 1925(a) opinion on June 11,
2015.



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                  229(c) on the basis that [K-Mart] failed to
                  show that they were unduly prejudiced where
                  the [t]rial [c]ourt determined that [Horev]’s
                  damages may now be in excess of
                  [$75,000.00], and where there exists a binding
                  stipulation between the parties and an [o]rder
                  of the [District Court] that damages do not
                  exceed [$75,000.00]?

            B.    Did the [t]rial [c]ourt abuse it’s [sic] discretion
                  in denying [K-Mart]’s [p]etition to [s]trike [o]ff
                  the [d]iscontinuance pursuant to Pa.R.C.P.
                  229(c) on the basis that [K-Mart] failed to
                  show that they were unduly prejudiced
                  pursuant to the [sic] Pa.R.C.P. 229(c) which
                  permits a court to strike off a discontinuance in
                  order to protect the rights of a party from
                  unreasonable        inconvenience,       vexation,
                  harassment, expense, or prejudice?

K-Mart’s Brief at 4.

      We begin by noting our standard of review.

            The decision to strike a praecipe to discontinue is
            within the sound discretion of the trial court and we
            will not reverse in the absence of an abuse of that
            discretion. When the trial court reaches a conclusion
            calling for the exercise of its discretion, the party
            complaining on appeal has a heavy burden. An
            abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence
            or the record, discretion is abused.

Tosi v. Kizis, 85 A.3d 585, 588 (Pa. Super 2014) (internal quotation marks

and citations omitted), appeal denied, 97 A.3d 745 (Pa. 2014).

            A discontinuance in strict law must be by leave of
            court, but it is the universal practice in Pennsylvania
            to assume such leave in the first instance. The

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            causes which will move the court to withdraw its
            assumed leave and set aside the discontinuance are
            addressed to its discretion, and usually involve some
            unjust disadvantage to the defendant or some other
            interested party. In determining whether to strike a
            discontinuance, the trial court must consider all facts
            and weigh equities. Further, the trial court must
            consider the benefits or injuries which may result to
            the respective sides if a discontinuance is granted.

Becker v. M.S. Reilly, Inc., --- A.3d ---, 2015 WL 4760627, at *2 (Pa.

Super. 2015).

      Discontinuances are governed by Rule 229, which provides in relevant

part, as follows.

            Rule 229. Discontinuance

            (a) A discontinuance shall be the exclusive method of
            voluntary termination of an action, in whole or in
            part, by the plaintiff before commencement of the
            trial.

                                      …

            (c) The court, upon petition and after notice, may
            strike off a discontinuance in order to protect the
            rights of any party from unreasonable inconvenience,
            vexation, harassment, expense, or prejudice.

Pa.R.C.P. 229.

      Although K-Mart presents two questions in its brief, we elect to

address them concomitantly.      K-Mart argues that it was prejudiced by

Horev’s discontinuance on two grounds.      First, K-Mart avers that the trial

court erred in denying its petition to strike because in its view Horev “is

estopped from voiding the stipulation entered by the parties and made an


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order of [the Eastern District].”   K-Mart’s Brief at 14. K-Mart proceeds to

argue in its brief that Horev should not be permitted to void the stipulation

she agreed to, discussing the federal law standards for stipulations.      K-

Mart’s Brief 14-23. K-Mart further argues that “[Horev]’s stated purpose in

seeking the discontinuance is to avoid the binding implications of the

stipulation and [o]rder of the federal court.” Id. at 13. K-Mart argues that

Horev should not be permitted to “forum shop.” Id. at 12. Second, K-Mart

avers that it has suffered prejudice as a result of the discontinuance because

it “has been inconvenienced and has incurred significant expense defending

the civil action.” Id. at 24.

      At the outset, we note that the propriety of the stipulation and its

admissibility are not before this Court at this juncture. The discontinuance

by Horev of her case does not affect the validity or legal effect of the

stipulation, and K-Mart has cited no legal authority for this proposition.

Therefore, we find that K-Mart’s argument that it was unduly prejudiced in

this regard is meritless.

      We now turn to K-Mart’s prejudice argument regarding the expense it

has incurred. As noted above, K-Mart avers that it was prejudiced by the

discontinuance   because    it is now   inconvenienced and “has incurred

significant expense defending the civil action.”      K-Mart’s Brief at 24.

However, as the trial court pointed out, should the Court of Appeals permit

Horev’s case to proceed in federal court, it will be based on the same issues,


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and any discovery that has been used in state court proceedings can be

utilized in the Eastern District.

                    Here, [K-Mart has] not shown any reason for
              the [trial c]ourt to strike off the discontinuance.
              Time, money, and resources spent on the discovery
              process in this case may be used in the subsequent
              action.   The new action initiated by [Horev] in
              [f]ederal [c]ourt will involve the same issues as the
              present case, and no discovery needs to be
              duplicated.

Trial Court Opinion, 6/11/15, at 3.

         Furthermore, K-Mart’s reliance on Truesdale v. Albert Einstein Med.

Ctr., 767 A.2d 1060 (Pa. Super. 2001) is misplaced.         In Truesdale, the

plaintiff’s discontinuance was one that suspended the statute of limitations

and was “without prejudice to be re-opened if [the ward was] ever declared

mentally competent.”       Id. at 1062.   Here, the discontinuance is without

prejudice, but does not toll the statute of limitations.         We therefore

conclude, for all of the aforementioned reasons, that K-Mart has not suffered

any prejudice as a result of Horev marking her case discontinued in the trial

court.

         Based on the foregoing, we conclude the trial court did not abuse its

discretion when it denied K-Mart’s Rule 229(c) petition to strike.         See

Becker, supra; Tosi, supra.         Accordingly, the trial court’s December 19,

2014 order is affirmed.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




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