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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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