J-A03016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOOMART TOKTOBAEV AND ULUKBEK               IN THE SUPERIOR COURT OF
DZHUMALIEV                                        PENNSYLVANIA

                      Appellees

                 v.

ALPHA CONTRACTING III, LLC,
KG CONSTRUCTION, ALLEGHENY
POWER, WEST PENN POWER COMPANY,
ALLEGHENY ENERGY, FIRST ENERGY
CORPORATION, TRANZSPORTER, TIE
DOWN ENGINEERING, INC., FAITH
ALLIANCE CHURCH AND THE WESTERN
PENNSYLVANIA DISTRICT OF THE
CHRISTIAN AND MISSIONARY ALLIANCE

APPEAL OF: FIRST ENERGY
CORPORATION, ALLEGHENY ENERGY,
                                                 No. 882 EDA 2015
INC., AND WEST PENN POWER COMPANY



              Appeal from the Order Entered March 9, 2015
          In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): 537 September Term, 2013


HELEN ESBENSHADE, ESQUIRE,                  IN THE SUPERIOR COURT OF
ADMINISTRATRIX AND PERSONAL                       PENNSYLVANIA
REPRESENTATIVE OF THE ESTATE OF
ADYLBEK MURATALIEV, DEC.

                      Appellee

                 v.

ALPHA CONTRACTING III, LLC, KG
CONSTRUCTION, ALLEGHENY POWER,
ALLEGHENY ENERGY, WEST PENN
POWER COMPANY, FIRST ENERGY
CORPORATION, TRANZSPORTER, TIE
DOWN ENGINEERING, INC., FAITH
J-A03016-16


ALLIANCE CHURCH, AND THE WESTERN
PENNSYLVANIA DISTRICT OF THE
CHRISTIAN MISSIONARY ALLIANCE

APPEAL OF: FIRST ENERGY CORP.,
ALLEGHENY ENERGY, INC., AND WEST                     No. 894 EDA 2015
PENN POWER COMPANY


               Appeal from the Order Entered March 9, 2015
           In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): September Term, 2013, No. 1552

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                               FILED MAY 18, 2016

     Appellants, First Energy Corporation, Allegheny Energy, Inc., and West

Penn Power Company, appeal from the March 9, 2015 order coordinating

these two cases in Philadelphia County pursuant to Pennsylvania Rule of Civil

Procedure 213.1. After careful review, we affirm.

     A prior panel of this Court adopted the following facts of this case.

           This case arises out of an incident which occurred on
           September 19, 2011, wherein [Helen Esbenshade,
           Esquire’s] Decedent, Mr. Adylbek Murataliev, was
           properly and lawfully engaging in construction and/or
           roofing services at the Faith Alliance Church in
           Saltsburg, Pennsylvania, and was required to use a
           TranzSporter roofing hoist, model number LH4000,
           to complete his assigned duties and tasks. On the
           time and date aforesaid, Mr. Murataliev and two
           other co-workers, Joomart Toktobaev and Ulukbek
           Dzhumaliev [(collectively Appellees)], were using the
           roofing hoist, when suddenly and without warning,
           the hoist moved and made contact with a 12 kV
           overhead electrical power line, which was installed
           and maintained in very close proximity to the Faith
           Alliance Church building.       As a result of the
           TranzSporter roofing hoist making contact with the


                                    -2-
J-A03016-16


           live 12 kV overhead electrical power line, Mr.
           Murataliev was electrocuted and died.             [Ms.
           Esbenshade,    as    administratrix     and   personal
           representative of the estate of Mr. Murataliev,
           brought a lawsuit in Philadelphia County on
           September 13, 2013 under the caption Esbenshade
           v. Alpha Contracting III, LLC, et al., September Term
           2013, No. 1552 (Esbenshade Case).]

           Additionally, Messrs. Toktobaev and Dzhumaliev
           were also severely injured in the incident and both
           individuals have filed their own lawsuit under the
           caption, Toktobaev v. Alpha Contracting III, LLC, et
           al., September Term 2013, No. 537 (Philadelphia
           County) [(Toktobaev Case)]. [The Toktobaev Case
           was filed on September 5, 2013.] Importantly, the
           lawsuit filed by Messrs. Toktobaev and Dzhumaliev
           involves the exact same Defendants, as well as the
           same allegations of negligence.

Esbenshade v. Alpha Contracting III, LLC, et al., 116 A.3d 675 (Pa.

Super. 2014) (unpublished memorandum at 2) (citation omitted).

     This case has a complex procedural history.       As an overview, the

parties have been contesting the proper venue for these cases in myriad

filings in three cases, upon which three judges have issued rulings.    In

addition to the Toktobaev Case and the Esbenshade Case, there was a third

matter involving the parties, a declaratory judgment action filed on

December 20, 2013, by Atlantic Casualty Insurance Company (Atlantic

Casualty Case).   In that case, Atlantic Casualty sought a declaratory

judgment that its insurance policy excluded from coverage the claims

against its insured, KG Construction, in the Esbenshade Case and the

Toktobaev Case.


                                   -3-
J-A03016-16


       In the Toktobaev Case, Appellants filed preliminary objections to the

complaint, arguing, in part, that Philadelphia County was not the proper

venue and, alternatively, that the trial court should transfer the case to

Indiana County based on forum non conveniens. On January 17, 2014, The

Honorable Frederica Massiah-Jackson struck the preliminary objections, and

Philadelphia County remained the venue. Trial Court Order, 1/17/14, at 1,

citing, Pa.R.C.P. 1006(d)(1) (providing that any party can petition the trial

court to transfer the action for the convenience of the parties and

witnesses); Pa.R.C.P. at 2179 (listing proper venue for a personal action

against a corporation); Second Amended Complaint, 11/22/13, at ¶ 35

(alleging “[a]ll defendants are jointly and severally liable for the injuries that

Plaintiffs Joomart Toktobaev and Ulukbek Dzhumaliev suffered[]”).

       Appellants also filed substantially similar preliminary objections to

Esbenshade’s complaint, which were assigned to a different Philadelphia

County trial judge, the Honorable Mark I. Bernstein, for disposition. Unlike

the preliminary objections in the Toktobaev Case, these were scheduled for

evidentiary hearing and argument on January 24, 2014. Trial Court Order,

11/22/13, at 1.1       The trial court also authorized the parties to conduct

discovery relevant to the question of venue. Id. On January 27, 2014, ten
____________________________________________


1
 We note that most of the trial court orders do not contain pagination. For
ease of review, we have assigned each page a corresponding page number
when necessary.



                                           -4-
J-A03016-16


days after Judge Massiah-Jackson struck the preliminary objections to the

Toktobaev    complaint,   Judge    Bernstein   entered   an   order   sustaining

Appellants’ preliminary objections and transferring venue of the Esbenshade

Case to Indiana County based on forum non conveniens. Trial Court Order,

1/27/14, at 1. On January 31, 2014, Esbenshade appealed to this Court.

      While that appeal was pending, on February 17, 2014, Esbenshade

filed, in the Atlantic Casualty Case, a motion to consolidate all three cases in

Philadelphia County under Pennsylvania Rule of Civil Procedure 213(a). In

an order dated March 21, 2014, The Honorable Pamela Pryor Dembe denied

the motion to consolidate.

      In addition, Appellants filed a motion to transfer the Toktobaev Case to

Indiana County.    On July 2, 2014, Judge Bernstein denied that motion,

reasoning that he could not overrule Judge Massiah-Jackson’s previous

ruling on forum non conveniens in the January 17, 2014 order. Appellants

then filed a motion for Judge Bernstein to amend his order to certify it as an

interlocutory order for appeal pursuant to Pennsylvania Rule of Appellate

Procedure 311(b)(2).      On August 25, 2014, Judge Bernstein denied that

motion, and Appellants petitioned for review with this Court. On November

7, 2014, this Court denied the petition for review.

      Thereafter, on December 2, 2014, this Court affirmed the trial court’s

order sustaining the preliminary objections and transferring the Esbenshade

Case to Indiana County.           Esbenshade, supra at 12; (Bowes, J.,


                                     -5-
J-A03016-16


unpublished concurring memorandum at 2); (Strassburger, J., unpublished

concurring memorandum at 1).2              Specifically, the majority of that panel

concluded that “based upon the location of the accident, its distance from

Philadelphia, and the number of witnesses located 300 miles away from

[Esbenshade’s] chosen forum, the trial court did not abuse its discretion in

transferring [the Esbenshade Case] to Indiana County.” Id. at 2 (Bowes, J.,

concurring).      Further, the concurring memorandum authored by Judge

Strassburger noted “that this case, along with those of Toktobaev and

Dzhumaliev, cries out for coordination.”             Id. at 1 (Strassburger, J.,

concurring).

       On January 23, 2015, Esbenshade filed, in the Esbenshade Case, a

motion to coordinate all three cases in Philadelphia County.         Esbenshade’s

Motion to Coordinate, 1/23/15, at ¶ 18, 22-25.           It was assigned to Judge

Bernstein.     Appellants filed a brief in opposition to coordination.     Atlantic

Casualty filed an answer to the motion to coordinate.              Toktobaev and



____________________________________________


2
  The Honorable Paula Ott’s lead memorandum concluded that Esbenshade
had waived the issues relating to forum non conveniens. Esbenshade,
supra at 8. The Honorable Mary Jane Bowes’ concurring memorandum
found that Esbenshade did not waive the issues relating to forum non
conveniens and affirmed the trial court on the merits. Esbenshade, supra
at 2 (Bowes, J., concurring). The Honorable Gene Strassburger joined Judge
Bowes’ concurring memorandum. Id. at 1 (Strassburger, J., concurring).
Therefore, the prior panel affirmed the trial court’s decision to transfer venue
based on forum non conveniens on the merits.



                                           -6-
J-A03016-16


Dzhumaliev filed a response in support of the motion to coordinate,

requesting that the trial court coordinate the cases in Philadelphia County.

       On February 13, 2015, in the Atlantic Casualty Case, Judge Dembe

entered declaratory judgment in favor of Atlantic Casualty, finding it had no

duty to defend or indemnify its insured in this case and the Toktobaev Case.

That order was not appealed.

       On March 9, 2015, Judge Bernstein entered an order coordinating the

Esbenshade      Case    and    the   Toktobaev   Case   in   Philadelphia   County.3

Appellants filed a timely notice of appeal with this Court.4

       On appeal, Appellants present the following issues for our review.

              1. Whether     the   [t]rial    [c]ourt    erroneously
                 coordinated the two injury cases in Philadelphia
                 County (rather than Indiana County) under the
                 mistaken belief that Rule 213.1 of the
                 Pennsylvania Rules of Civil Procedure required the
                 cases to be coordinated in Philadelphia County,
                 the venue in which the first case was filed?

              2. Whether the Superior Court’s ruling that it would
                 be oppressive to try the Estate’s action in
                 Philadelphia County precluded the [t]rial [c]ourt
                 from invoking the coordination rule on remand as
                 a vehicle to transfer venue from Indiana County
                 back to Philadelphia County?

____________________________________________


3
 We note the order was dated February 25, 2015 and docketed on March 9,
2015.
4
  The trial court did not order Appellants to file a Pennsylvania Rule of
Appellate Procedure 1925(b) concise statement of errors complained of on
appeal. The trial court filed its opinion on May 27, 2015.



                                           -7-
J-A03016-16


            3. The [t]rial [c]ourt ruled that it would be
               oppressive—and not merely inconvenient—to try
               the [Esbenshade] action in Philadelphia County.
               In selecting the venue in which to coordinate the
               [Esbenshade] action with the [Toktobaev] action
               arising out of the same accident, did the [t]rial
               [c]ourt err by selecting the oppressive venue
               (Philadelphia County) rather than the non-
               oppressive venue (Indiana County)?

Appellants’ Brief at 3.

      Our standard of review for an order of coordination is whether the trial

court abused its discretion. Pa. Mfrs.’ Ass’n Ins. Co. v. Pa. State Univ.,

63 A.3d 792, 794 (Pa. Super. 2013). We have explained that the following

principles guide our review.

            Where 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 [Pennsylvania Rule of Civil
            Procedure 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.”

Washington v. FedEx Ground Package Sys., 995 A.2d 1271, 1277 (Pa.

Super. 2010) (citations omitted).

      Further, Rule 213.1 provides, in part, as follows.

            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

                                     -8-
J-A03016-16


          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.

                                    …

          (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;

               (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.

          (d) If the court orders that actions shall be
          coordinated, it may

               (1) stay any or all of the proceedings in any
               action subject to the order, or




                                   -9-
J-A03016-16


                   (2) transfer any or all further proceedings in
                   the actions to the court or courts in which any
                   of the actions is pending, or

                   (3)   make any other appropriate order.

                                           …

Pa.R.C.P. 213.1(a), (c)-(d).

      In their first issue, Appellants contend that the trial court erred in

ordering the cases to be coordinated in Philadelphia County.         Appellants’

Brief at 25.   Appellants argue, “Judge Bernstein did not consider whether

Indiana County would be a more appropriate venue …. Judge Bernstein did

not … determine that Philadelphia County was a more appropriate venue

than Indiana County in which to resolve the coordinated cases.” Id. at 25-

26. Appellees respond that “Appellants failed to properly raise this issue at

the trial court.” Appellees’ Brief at 5.

      The text of Rule 213.1(c) reveals that a coordination analysis has two

parts. Pa.R.C.P. 213.1(c). First, the trial court must determine whether to

coordinate the cases.    Id.   Second, if coordination is appropriate, the trial

court must then decide which county should conduct the proceedings. Id.

      In this case, Appellants contend that the trial court erred in ordering

coordination without conducting the second step of the Rule 213.1 analysis,

i.e., which county should hear the cases.         Appellants’ Brief at 25-26.

However, Appellants did not present the trial court with Indiana County as

an option. Instead, in their brief in opposition to the motion to coordinate,


                                      - 10 -
J-A03016-16


they expressly requested that the trial court not consider coordinating the

cases in Indiana County as follows.

              [Appellants] do not necessarily dispute that the
              Toktobaev [Case] and the [Esbenshade Case]
              involve common issues of law and fact such that
              coordination in Indiana County—where it would not
              be oppressive to resolve the cases—could be
              appropriate. These entities reserve the right to seek
              coordination of those two cases in Indiana County in
              the future. However, that more limited issue is
              not implicated in the Motion to Coordinate.

Appellants’ Brief in Opposition to Esbenshade’s Motion to Coordinate,

2/12/15, at 5 n.1 (emphasis added).            Appellants then focused their

argument on the reasons that the cases should not be coordinated. Id. at

6-12.

        Now, on appeal, Appellants, for the first time, advocate Indiana

County as the location for the coordinated cases and contend that the trial

court should have considered whether to coordinate the cases in Philadelphia

County or Indiana County. Appellants’ Brief at 25-26. Because Appellants

did not present this issue to the trial court, it is not preserved for our review.

See Pa.R.A.P. 302(a) (declaring “[i]ssues not raised in the lower court are

waived and cannot be raised for the first time on appeal[]”).         Appellants

made the strategic decision to focus on the first part of the coordination

analysis, whether coordination was appropriate, believing that the choice of

which county to coordinate in was not before the trial court in the motion to

coordinate.     Appellants’ Brief in Opposition to Esbenshade’s Motion to


                                      - 11 -
J-A03016-16


Coordinate, 2/12/15, at 5 n.1.          Appellants misapprehended Rule 213.1(c),

but they cannot revise and reconstruct their strategy in this Court.            See

Pa.R.A.P. 302(a). Therefore, we conclude that Appellants have waived this

issue by not raising it in the trial court. See id.

       We address Appellants’ two remaining issues together.                Therein,

Appellants contend that the trial court previously found that Philadelphia

County was an “oppressive” venue for the Esbenshade Case, and the

Superior Court affirmed that decision.         Appellants’ Brief at 30.   Appellants

assert that the trial court was not permitted to coordinate the Esbenshade

Case in Philadelphia County because that disturbs this Court’s decision to

affirm venue in Indiana County based on its forum non conveniens analysis.

Id. Appellants also argue that it circumvents numerous trial court rulings on

venue. Id. at 34.

       This Court has noted that the issue of forum non conveniens5 is

different from the Rule 213.1 coordination analysis.            “We reiterate that

convenience is only one factor, and not the overriding factor, in such

determinations.” Pa. Mfrs.’, supra at 795. “Ultimately, as we explained in

Washington, the trial court’s primary task is not to balance the relative

____________________________________________


5
  We note that Pennsylvania Rule of Civil Procedure 1006(d)(1) is the basis
of forum non conveniens. It provides that “[f]or the convenience of the
parties and witnesses the court upon petition of any party may transfer an
action to the appropriate court of any other county where the action could
originally have been brought.” Pa.R.C.P. 1006(d)(1).



                                          - 12 -
J-A03016-16


convenience of the parties, but to decide if the proposed coordination would

provide ‘a fair and efficient method of adjudicating the controversy.’” Id. at

796, quoting Washington, supra at 1277.

        Here, Judge Bernstein decided the coordination motion.              He

explained that the cases should be coordinated because they are “clearly

related” because they “derive from the same operative facts.”       Trial Court

Opinion, 5/27/15, at 3.    He then chose to coordinate them in Philadelphia

County, where the first-filed case remained. Id. He did so even though he

had determined that Philadelphia County was not a convenient forum for

Appellants.   Our prior panel decision and the other trial court orders were

not controlling on the question of whether the coordination was “a fair and

efficient method” to resolve the cases.       Pa. Mfrs’, supra.     Rule 213.1

permitted the trial court to coordinate the cases in Philadelphia County, even

though it was not convenient for some of the parties because convenience is

not dispositive. See id.

      Further, the record supports the decision to coordinate.     There is no

question that the cases involved common issues of fact and law.            See

Pa.R.C.P. 213.1(c)(1). Appellants presented no evidence or argument that

coordination would result in prejudice.      Id. at 213.1(c)(3).   Coordination

would be a more efficient use of judicial resources because two courts of

common pleas deciding the cases would result in a large duplication of

efforts, and possibly result in inconsistent rulings, orders, or judgment. Id.


                                    - 13 -
J-A03016-16


at 213.1(c)(4)-(5).   These factors weighed heavily in favor of coordination

and the trial court was permitted to conclude they outweighed the

convenience of the parties, witnesses, and counsel.        Id. at 213.1(c).

Moreover, even in the event the issue was not waived, the trial court did not

abuse its discretion in selecting Philadelphia County as the location for the

coordinated proceedings.    Therefore, we will not disturb the trial court’s

decision. See Washington, supra.

     For the foregoing reasons, we find Appellants’ issues waived or without

merit.   Accordingly, we affirm the trial court’s March 9, 2015 order

coordinating these cases in Philadelphia County.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




                                    - 14 -
