J. A10040/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SUSANNE WALLACE,                        :     IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF         :           PENNSYLVANIA
JANENE WALLACE, DEC.                    :
                                        :
                   v.                   :
                                        :
COMMUNITY EDUCATION                     :
CENTERS, INC.,                          :         No. 2352 EDA 2016
                                        :
                         Appellant      :


                 Appeal from the Order Entered June 28, 2016,
               in the Court of Common Pleas of Delaware County
                        Civil Division at No. 15-009332


BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 10, 2017

      Community Education Centers, Inc. (“CEC”) appeals from the June 28,

2016 order entered in the Court of Common Pleas of Delaware County that

denied its motion to strike discontinuance of an action filed by appellee

Susanne Wallace, administratrix of the estate of Janene Wallace, deceased

(“Wallace”), against CEC. We affirm.

      The trial court set forth the factual history, as gleaned from Wallace’s

complaint, as follows:

            Janene Wallace (hereinafter “[Wallace’s] decedent”)
            was an inmate at George Hill Correctional Facility.
            That correction[al] facility is operated by [CEC].
            [Wallace] is the mother of [the] decedent[, Janene
            Wallace]. It is alleged that [Wallace’s] decedent
            suffered from mental illness which was known or
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            should have been known by the correctional officers
            at [CEC’s] facility. On May 22, 2015, [Wallace’s]
            decedent was seen by a medical care provider, and it
            was recommended that she be seen in the
            psychiatric unit on the following day. [Wallace’s]
            decedent was seen by a psychiatrist and cleared to
            return to her unit in general housing. On May 26,
            201[5], while in her cell [Wallace’s] decedent
            allegedly stated to a correction[al] officer that she
            was going to choke herself and covered her cell
            window.     No one from the correctional facility
            visually checked on [Wallace’s decedent] for a period
            of approximately fifty (50) minutes thereafter.
            During this time, [Wallace’s] decedent hung herself
            from a vent in the cell. Although medical staff tried
            to resuscitate [Wallace’s] decedent, she was
            pronounced dead at the correctional facility. The
            post mortem examination of [Wallace’s] decedent
            revealed numerous bruises on her legs, chest and
            arms.

Trial court opinion, 9/20/16 at 2-3.

      The trial court set forth the following procedural history:

                  [CEC] has appealed from this Court’s Order of
            June 28, 2016 denying its Motion to Strike
            Discontinuance in this correctional facility liability
            action involving the George Hill Correctional Facility
            located in Delaware County, Pennsylvania. In its
            Motion to Strike Discontinuance, [CEC] requested
            this Court to strike the Praecipe to Discontinue
            Action Without Prejudice that [Wallace] had filed on
            February 9, 2016.       That Pra[eci]pe was filed to
            discontinue this action after [Wallace] had filed a
            Complaint in the Court of Common Pleas of
            Philadelphia County. In this action, [Wallace] named
            only [CEC] as a defendant.        In the Philadelphia
            County action, [Wallace] named [CEC] and one of its
            correctional officers as defendants.

                  On October 23, 2015, [Wallace] instituted this
            action by filing a Pra[eci]pe for Writ of Summons.
            [Wallace] then undertook pre-complaint discovery by


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              serving a Request for Production [of] Documents and
              Interrogatories. On November 13, 2015, [CEC] filed
              a Praecipe for Rule to File Complaint. On February 1,
              2016, [Wallace] filed a Complaint in the Court of
              Common Pleas of Philadelphia County against [CEC]
              and Chamara Prince [(“Defendant Prince”)], a
              correctional officer employed by [CEC] at the facility
              where the incidents giving rise to [Wallace’s] cause
              of action are alleged to have occurred. Defendant
              Prince is a Philadelphia County resident and her
              identity was first made known to [Wallace] in [CEC’s]
              responses to [Wallace’s] pre-complaint discovery in
              this action. On February 9, 2016, [Wallace] filed a
              Praecipe to Discontinue Action Without Prejudice
              pursuant to Pa. R.C.P 229 to discontinue the action
              filed in this Court.

                     On February 19, 2016, [CEC and Defendant
              Prince] in the Philadelphia County action filed a
              Notice of Removal in order to move that action to
              federal court. On February 23, 2016, The Honorable
              Wendy Beetlestone of the United States District
              Court for the Eastern District of Pennsylvania entered
              an Order to Show Cause, requiring [CEC and
              Defendant Prince] to show cause why the case
              should not be remanded for lack of subject matter
              jurisdiction. Thereafter, on March 1, 2016, [CEC and
              Defendant Prince] filed a Motion to Withdraw Notice
              of Removal and Remand Case to State Court. That
              Motion was granted and [Wallace’s] cause of action
              remains pending in [the] Court of Common Pleas of
              Philadelphia County.

                     On May 4, 2016, [CEC] filed its Motion to
              Strike    Discontinuance    with   a    supporting
              memorandum of law. On May 24, 2016, [Wallace]
              filed a response with a supporting memorandum of
              law. On June 28, 2016, this Court entered an Order
              denying [CEC’s] Motion and the instant appeal
              ensued.

Id. at 1-2.




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      The record further reflects that CEC filed a timely notice of appeal to

this court.   Thereafter, CEC complied with the trial court’s order to file a

concise   statement      of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b), and the trial court filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

              1.     Did the trial court err in failing to apply binding
                     precedent in denying [CEC’s] Motion to Strike
                     Discontinuance?

              2.     Did the trial court err when it misapplied the
                     case law by relying upon cases that did not
                     have the appropriate facts to apply the rule of
                     law set forth in Brown v. T.W. Phillips Gas &
                     Oil Co., 74 A.2d 105, 108 ([Pa.] 1950)?

              3.     Did the trial court err when it attempted to
                     distinguish the facts of Brown[], 74 A.2d [at]
                     108 [] and Pohl v. NGK Metals Corp., 936
                     A.2d 43 (Pa.Super. 2007) to the instant case
                     where the elements in Brown and the intent of
                     Pohl to prevent “forum shopping” were met
                     under the facts of the instant case?

Appellant’s brief at 4 (parallel citations omitted).

      Rule 229 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


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                  inconvenience, vexation, harassment, expense,
                  or prejudice.

Pa.R.C.P. 229(a), (c).

            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. However,
            the discontinuance is subject to be stricken for cause
            shown:

                  The 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[.]

            A discontinuance that is prejudicial to the rights of
            others should not be permitted to stand even if it
            was originally entered with the expressed consent of
            the court.

            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. In
            Foti [v. Askinas, 639 A.2d 807 (Pa.Super. 1994)],
            the case had been pending for approximately five
            years at the time of the discontinuance. Depositions
            had been taken, interrogatories exchanged and
            several motions ruled on by the court. This Court
            ultimately held that the trial court had abused its
            discretion in granting the discontinuance where
            appellants, who endured the burden of litigating the
            initial suit for almost five years, may again be
            subjected to the same litigation.

            Additionally, discontinuances may be improper where
            there is a dispositive motion pending. In Nichols [v.
            Horn, 525 A.2d 1242 (Pa.Super. 1987)], this Court
            concluded the trial court abused its discretion by
            refusing to strike a discontinuance where a motion


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            for summary judgment was pending.          This Court
            explained:

                  We think prejudice has been shown
                  where, as here, a motion for summary
                  judgment has been filed and the party
                  seeking to strike the discontinuance
                  would be entitled to summary judgment
                  if the discontinuance was not allowed.
                  Under these circumstances, the court
                  abused its discretion in refusing to find
                  prejudice.

            Our courts have also held that discontinuances are
            improper where it is apparent that the purpose of
            plaintiffs’ discontinuance is to “forum shop.”       In
            Brown [v. T.W. Phillips Gas & Oil Co., 74 A.2d
            105 (Pa. 1950)], the plaintiffs sought to discontinue
            their case in an effort to pursue a similar action that
            had begun in federal court. The Court explained,
            “[O]nce the jurisdiction of a competent court has
            attached, discontinuance of the action ought not to
            be permitted over objection of the adversary if the
            only reason for discontinuing is the plaintiff’s desire
            to institute action for the same cause in another
            forum.” Id. at 108.[]

Pohl v. NGK Metals Corp., 936 A.2d 43, 46-47 (Pa.Super. 2007)

(numerous internal citations and quotation marks omitted).

      Of course, “[t]he decision to grant a discontinuance without prejudice

rests within the discretion of the trial court, and the ruling will not be

reversed absent an abuse of discretion.”    Marra v. Smithkline Beecham

Corp., 789 A.2d 704, 706 (Pa.Super. 2001) (citations omitted).        A party

challenging a trial court’s exercise of discretion bears a “heavy burden.” Id.

(citation omitted).




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            It is not sufficient to persuade the appellate court
            that it might have reached a different conclusion
            under the same factual situation.       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.

Id. (citation omitted).

      Here, although CEC sets forth three issues in its brief, a reading of that

brief reveals that the gravamen of CEC’s complaints is that the trial court

abused its discretion in denying its motion to strike discontinuance because

Wallace’s sole reason for discontinuing the Delaware County action was to

forum shop, which Brown prohibits. As such, CEC faults the trial court for

considering all facts and weighing equities when it denied CEC’s motion to

strike discontinuance because, according to CEC, its motion should have

been granted without consideration of all facts and without weighing equities

because Wallace, “despite willingly filing this case in Delaware County and

conducting discovery here, has now discontinued this case and re-filed an

identical case in Philadelphia County for no purpose other than to forum

shop.” (CEC’s brief at 19.)

      Contrary to CEC’s contention, the record reflects that Wallace initiated

an action against CEC in Delaware County by filing a praecipe for writ of

summons. In her memorandum of law in support of her opposition to CEC’s

motion to strike, Wallace averred that she initiated the action in Delaware



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County because Pa.R.Civ.P. 1006(a.1) requires that a medical professional

liability action must be brought in the county in which the cause of action

arose.     See Pa.R.Civ.P. 1006(a.1) (requiring that “a medical professional

liability action may be brought against a health care provider for a medical

professional liability claim only in a county in which the cause of action

arose”).    Therefore, because Wallace believed that she may have had a

medical professional liability claim against CEC, she filed her praecipe for

writ of summons in Delaware County because the rules of civil procedure

required her to do so, as Delaware County is the county in which the cause

of action arose.    (Wallace’s Memorandum of Law in Support of [Wallace’s]

Response in Opposition to [CEC’s] Motion to Strike Discontinuance, 5/24/16

at 12.)

        The record further reflects that prior to initiating the action, Wallace’s

counsel sent a letter to CEC regarding CEC’s duty to preserve evidence. (Id.

at Exhibit A.) In that letter, Wallace also requested the opportunity to view

“videos or photographs of the incident and events prior to Wallace’s

[decedent’s] death.”     (Id.)   In response, CEC’s insurance carrier advised

Wallace’s counsel that “it is [CEC’s] policy not to make materials or

documents available for review without being legally compelled to do so.”

(Id. at Exhibit B.) As such, Wallace filed her praecipe for writ of summons,

followed by limited pre-complaint discovery requests.         (Id. at Exhibits C

& D.)     In CEC’s answers to those discovery requests, Wallace learned of



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Defendant Prince’s existence, as well as Defendant Prince’s potential role in

Wallace’s decedent’s death.     Wallace also learned that her claims against

CEC sounded in negligence, as opposed to professional medical liability.

Therefore, Wallace praeciped to discontinue her Delaware County action, an

action in which she never filed a complaint. She then instituted an action

sounding in negligence against CEC and Defendant Prince by filing a

complaint in Philadelphia County, where CEC does business and where

Defendant Prince resides.    As such, the record belies CEC’s bald assertion

that Wallace “re-filed an identical case in Philadelphia for no purpose other

than to forum shop.” (CEC’s brief at 19.)

      Moreover, in its thoughtful opinion, the trial court, as required,

considered all facts and weighed equities when it concluded that the

discontinuance did not expose CEC to any “unreasonable inconvenience,

vexation, harassment, expense[,] or prejudice” and denied CEC’s motion to

strike.   (Trial court opinion, 9/20/16 at 10.)   See Pa.R.Civ.P. 229(c) (“[a]

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.”). Indeed, CEC advances no

claim that its motion to strike discontinuance should have been granted

because such relief was necessary to protect CEC’s rights.        Rather, CEC

asserts, without one scintilla of record support, that its motion to strike

should have been granted because Wallace’s only purpose for discontinuing



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was to forum shop and, consequently, based on the following language from

Brown the trial court was compelled to grant its motion to strike:

           [O]nce the jurisdiction of a competent court has
           attached, discontinuance of the action ought not be
           permitted over objection of the adversary if the only
           reason for discontinuing is the plaintiff’s desire to
           institute an action for the same cause in another
           forum.

Appellant’s brief at 9, 14, 15, 20, citing Brown, 74 A.2d at 108. The record,

however, belies CEC’s claim. Consequently, we find no abuse of discretion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




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