             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Solomon, Haines &         :
Kibblehouse, Inc., O’Neil Properties
                                :
Group, Henkels & McCoy          :
and Commonwealth of Pennsylvania:
                                :
David Solomon and Fanya Solomon :
                                :
            v.                  : No. 681 C.D. 2017
                                : Submitted: March 8, 2018
Joseph D. Hulme, IV             :
                                :
            v.                  :
                                :
Haines & Kibblehouse, Inc.      :
                                :
Appeal of: Joseph D. Hulme, IV  :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL J. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge1


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: April 17, 2018


               Joseph D. Hulme, IV (Hulme) appeals from an order of the Court of
Common Pleas of Bucks County (trial court) denying and dismissing his motion to
sever consolidated cases because it was determined that David and Fanya Solomon’s



      1
          This opinion was reassigned to the authoring judge on March 28, 2018.
(collectively, the Solomons) discontinuance of their claim somehow discontinued
Hulme’s separate claims against the Solomons and others.


                                            I.
             This matter involves two separate actions commenced in 2007, which
arose out of an automobile accident that took place on April 5, 2005. The actions
were eventually “consolidated for purposes of discovery and trial” in 2010 because
they involve substantially the same facts and mostly the same defendants.
(Reproduced Record (R.R.) at 20a-21a.) In one action, the Solomons were the
plaintiffs and Hulme was the defendant. In the other action, Hulme was the plaintiff
and the Solomons were defendants.2               Because there was never “complete
consolidation,” “the actions could not have been consolidated such that the actions
lost their separate identities and the pleadings merged.” Kincy v. Petro, 2 A.3d 490,
495 (Pa. 2010); see also Malachuck v. Sivchuk, 137 A.3d 1283 (Pa. 2016); Pa. R.C.P.
No. 213(a). The trial court’s post-consolidation caption reflects this fact.




      2
         In his action, Hulme named David Solomon as a defendant, along with Haines &
Kibblehouse, Inc. a/k/a Haines & Kibblehouse Contractors a/k/a Haines & Kibblehouse
Environmental Services, Inc.; O’Neil Properties Group, L.P. a/k/a O’Neil Properties Group;
Henkels & McCoy a/k/a Henkels & McCoy, Inc., a/k/a Henkels National, Inc.; and the
Commonwealth of Pennsylvania a/k/a Commonwealth of Pennsylvania, Department of
Transportation (collectively, Defendants).


                                            2
(R.R. at 50a.)


             Following discovery, on August 9, 2013, the Solomons filed a praecipe
to settle, discontinue and end (Praecipe to Discontinue), which only exhibits the
caption for the Solomons’ action against Hulme and only supplies the signature of the
Solomons’ attorney. It provides, in its entirety:




                                           3
(R.R. at 22a.)3 While often referred to in the briefs and the trial court opinion as the
“order of discontinuance,” it was not signed by a judge.


              The docket remained open and in the year following the Solomons’
Praecipe to Discontinue, several of the defendants moved for summary judgment
against Hulme and also filed responses in opposition to other defendants’ motions for
summary judgment. Remarkably, one of those defendants moving for summary
judgment and objecting to other defendants’ motions for summary judgment was the
Solomons. (See R.R. at 75a.) In those filings, the Solomons did not mention the


       3
         Although the Praecipe to Discontinue is self-described as an “Order to Settle Discontinue
and End,” it was correctly entered on the docket as a “Praecipe to Mark the Case Settled,
Discontinued and Ended Filed. /PD $9.00.” (R.R. at 22a, 74a.)


                                                4
Praecipe to Discontinue and only sought summary judgment on the grounds that
Hulme was contributorily negligent.


            On March 16, 2016, the trial court dismissed as moot “the Motions for
Summary Judgment filed by Defendants David Solomon, Haines & Kibblehouse,
Inc., Henkels & McKoy, and McMahon Associations, Inc. . . . by virtue of the
[Praecipe to Discontinue] filed in this matter on August 9, 2013.” (R.R. at 50a)
(emphasis added). Because Hulme was the prevailing party, he could not appeal.


            Hulme then filed a Motion to Sever Consolidated Cases (Motion to
Sever), explaining:

            4. On or about April 19, 2013, Mark Yurovsky, Esquire,
            attorney for [the Solomons] as Plaintiffs . . . filed a Praecipe
            [to Discontinue] . . . . In actuality, only the claim brought
            by [the Solomons] as Plaintiffs was resolved, the claim of
            [Hulme] against the defendants named herein was never
            dismissed.

            [5.] After filing of the aforesaid Praecipe, the litigation
            involving [Hulme] as Plaintiff continued to be litigated with
            Motions filed by various of the Parties hereto including
            various Motions for Summary Judgment filed by
            Defendants herein concerning the claim of Joseph Hulme as
            Plaintiff. These Motions [were] forwarded by Praecipe to
            the Court for decision and Judge Gilman entered an Order
            declaring that the Motions were moot [] due to the
            aforementioned [Praecipe to Discontinue] filed by Attorney
            Yuro[v]sky representing [the Solomons] as Plaintiffs.

            [6.] [Hulme] did not file such a Praecipe to Settle
            Discontinue or End his claim nor did he acquiesce to the
            filing of the aforementioned Praecipe.

            [7.] Plaintiff believes and therefore avers that the
            aforementioned Praecipe was intended to settle the claims
                                      5
                 of [the Solomons] only and not in any way was it meant to
                 settle the separate and distinct claims of [Hulme].

                 [8.] [Hulme] requests this Honorable Court to sever his
                 claim from that of [the Solomons] and permit [] his claim
                 against these Defendants to proceed to resolution.


(R.R. at 56a-57a.)         The trial court denied the Motion to Sever and this appeal
followed.4


                                                   II.
                 On appeal, the issue seems to be whether the trial court erred in denying
Hulme’s Motion to Sever his action from the Solomons’ action. What the parties are
seemingly unaware of is that the case was already unconsolidated when the Solomons
filed the Praecipe to Discontinue their action. As to the central issue of whether the
Solomons’ unilateral Praecipe to Discontinue could discontinue Hulme’s separate
action in which the Solomons were named defendants – to state the obvious – a
defendant cannot discontinue a plaintiff’s action against him. Under Pennsylvania
Rule of Civil Procedure No. 229,5 only a plaintiff can file a praecipe to discontinue an



       4
         As a preliminary matter, Defendants assert that this Court lacks appellate jurisdiction over
the propriety of the trial court’s actions because: (1) the deemed discontinuance of the entire action
took place in 2013 and there is no longer a case and controversy; and (2) the order denying the
Motion to Sever is interlocutory and not appealable. However, there obviously remained a case and
controversy over the purported discontinuance of Hulme’s action given that the trial court never
entered an order for the Praecipe to Discontinue and the docket remained open and active at all
times thereafter. Moreover, because the trial court’s order denying Hulme’s Motion to Sever
effectively disposed of all claims and parties, that order should obviously be treated as final and
appealable.

       5
           Pa. R.C.P. No. 229 provides, in pertinent part:

(Footnote continued on next page…)
                                                    6
action, not the defendant. The Solomons’ “Order to Settle Discontinue and End”
only discontinued their action against Hulme, not Hulme’s action against them and
others. Hulme did not have to appeal this discontinuance because it did not have, nor
did it even purport to have any effect on his separate action. Moreover, there was no
order for him to appeal.6


              Accordingly, for the foregoing reasons, the trial court’s order is reversed
and the matter is remanded to the trial court.



                                               _______________________________
                                               DAN PELLEGRINI, Senior Judge


(continued…)

              (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.

              (b)(1) Except as otherwise provided in subdivision (b)(2), a
              discontinuance may not be entered as to less than all defendants
              except upon the written consent of all parties or leave of court upon
              motion of any plaintiff or any defendant for whom plaintiff has
              stipulated in writing to the discontinuance.

              (2) In an action governed by Rule 1042.3, a plaintiff may enter a
              discontinuance as to a defendant if a certificate of merit as to that
              defendant has not been filed.

       6
          On other occasions, a party’s praecipe to discontinue that did not comply with the strict
requirements of Rule 229 has been deemed a nullity. See, e.g., Matyas v. Albert Einstein Medical
Center, 310 A.2d 301, 302 (Pa. Super. 1973) (“Therefore, since neither plaintiff nor additional
defendant could properly have initiated a discontinuance as to less than all the defendants, the
agreement between them to bring about a discontinuance as to the additional defendant alone is a
nullity.”) (emphasis added.)

                                                7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Solomon, Haines &         :
Kibblehouse, Inc., O’Neil Properties
                                :
Group, Henkels & McCoy          :
and Commonwealth of Pennsylvania:
                                :
David Solomon and Fanya Solomon :
                                :
            v.                  : No. 681 C.D. 2017
                                :
Joseph D. Hulme, IV             :
                                :
            v.                  :
                                :
Haines & Kibblehouse, Inc.      :
                                :
Appeal of: Joseph D. Hulme, IV  :




                                    ORDER


             AND NOW, this 17th day of April, 2018, it is hereby ordered that the
order of the Court of Common Pleas of Bucks County (trial court) in the above-
captioned matter is reversed and the matter is remanded to the trial court.


             Jurisdiction relinquished.



                                          _______________________________
                                          DAN PELLEGRINI, Senior Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Solomon, Haines &                 :
Kibblehouse, Inc., O’Neil Properties    :
Group, Henkels & McCoy                  :
and Commonwealth of Pennsylvania        :
                                        :
David Solomon and Fanya Solomon         :
                                        :
                   v.                   : No. 681 C.D. 2017
                                        : Submitted: March 8, 2018
Joseph D. Hulme, IV                     :
                                        :
                   v.                   :
                                        :
Haines & Kibblehouse, Inc.              :
                                        :
Appeal of: Joseph D. Hulme, IV          :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE WOJCIK                                          FILED: April 17, 2018

            I respectfully dissent.
            This matter involves two separate actions in the Court of Common
Pleas of Bucks County (trial court) arising from an automobile accident, which took
place on April 5, 2005, in Bucks County, Pennsylvania. At Docket No. 2007-00092,
David Solomon and his wife, Fanya (collectively, the Solomons), filed suit against
Joseph D. Hulme (Hulme). At Docket No. 2008-03900, Hulme filed suit against
David Solomon as well as Haines & Kibblehouse, Inc., O’Neil Properties Group,
L.P., Henkels & McCoy, Inc., and the Commonwealth of Pennsylvania, Department
of Transportation.1
              At the request of the Solomons, the trial court consolidated the two
cases at Docket No. 2007-00092 for purposes of discovery and trial (Consolidation
Order). Trial Court Order, 2/5/10, at 1; Reproduced Record (R.R.) at 20a-21a.
Hulme did not object. See Trial Court Opinion, 8/16/17, at 2; R.R. at 84a.
              On August 9, 2013, the Solomons filed a Praecipe to Settle, End and
Discontinue the litigation pursuant to Pa. R.C.P. No. 229 (Praecipe to Discontinue).
R.R. at 22a. Although the Praecipe to Discontinue was signed only by the Solomons’
attorney, the trial court treated the Praecipe to Discontinue as discontinuing all
parties and all claims at both dockets. Trial Court Opinion, 8/16/17, at 3; R.R. at
85a.
              A year later, three of the original defendants, David Solomon, Haines
& Kibblehouse, Inc., Henkels & McCoy, and additional defendant, McMahon
Associates, Inc. (collectively, Defendants) filed separate motions for summary
judgment. R.R. at 29a-48a. The motions pertained to the case at Docket No. 2008-
03900, in which Hulme was the plaintiff. Hulme did not respond to any of the
motions and has offered no explanation for this failure.
              On March 16, 2016, the trial court entered an order deeming the
summary judgment motions moot by virtue of the Praecipe to Discontinue. Trial
Court Order, 3/16/16, at 1; R.R. at 50a. Hulme did not seek reconsideration or appeal
that order, which became final on April 15, 2016.
              The majority opines that Hulme could not appeal because Hulme was
the prevailing party. Majority Slip Op. at 5. Indeed, a “prevailing party” is not

       1
        In the course of litigation at Docket No. 2007-00092, in which Hulme was the defendant,
Hulme joined these same defendants as additional defendants at Docket No. 2008-03900.
                                         MHW - 2
aggrieved and therefore has no standing to appeal an order that has been entered in
his favor. United Parcel Service, Inc. v. Pennsylvania Public Utility Commission,
830 A.2d 941, 948 (Pa. 2003). However, “any party who is aggrieved by an
appealable order may appeal.” Pa. R.A.P. 501. “Whether or not a party is aggrieved
by the action is a substantive question determined by the effect of the action on the
party, etc.” Pa. R.A.P. 501, Note; accord Loughran v. Valley View Developers, Inc.,
145 A.3d 815, 819 n.3 (Pa. Cmwlth. 2016); Tri-County Landfill, Inc. v. Pine Twp.
Zoning Hearing Board, 83 A.3d 488, 509 (Pa. Cmwlth.), appeal denied, 101 A.3d
788 (Pa. 2014).
             Here, although the trial court denied Defendants’ motions for summary
judgment against Hulme, Hulme was nevertheless adversely affected by the order
and thus aggrieved. The trial court did not deny Defendants’ motion for summary
judgment on the basis that there were genuine issues of material fact or that
Defendants were not entitled to judgment as a matter of law.             See P.J.S. v.
Pennsylvania State Ethics Commission, 723 A.2d 174, 175 (Pa. 1999) (“Summary
judgment may be granted only in those cases where the record clearly shows that
there are no genuine issues of material fact and that the moving party is entitled to
judgment as a matter of law.”). Rather, the trial court denied the motions holding
the “motions are deemed moot and are thereby dismissed by virtue of the Order to
Settle, Discontinue and End filed in this matter on August 9, 2013.” Trial Court
Order, 3/16/16, at 1; R.R. at 50a. Hulme is aggrieved by this order because the order
effectively discontinued the entire matter as to all parties and all claims. Conversely,
Defendants, who sought dismissal of the case, ultimately prevailed.




                                      MHW - 3
              After the appeal period lapsed, Hulme filed his first motion to vacate
the Consolidation Order, which the trial court dismissed for failure to pursue.2 On
December 19, 2016, Hulme filed a motion to sever consolidated cases on the basis
that the trial court erred in determining that the Praecipe to Discontinue settled all
claims, which the trial court denied and Hulme now appeals.
              The issue before us is limited to whether the trial court abused its
discretion by refusing to allow Hulme to sever his claims. Rule 213(b) of the
Pennsylvania Rules of Civil Procedure allows a trial court to sever cases, causes of
action or claims. Pa. R.C.P. No. 213(b). It may do so on its own motion or on
motion of any party. Id. We review a decision to grant or refuse severance for an
abuse of discretion. Ball v. Bayard Pump and Tank Co., 67 A.3d 759, 767 (Pa.
2013). The party bears a “heavy burden” on appeal when challenging a discretionary
ruling. Fancsali v. University Health Center of Pittsburgh, 761 A.2d 1159, 1162
(Pa. 2000). “It is not sufficient to persuade the appellate court that it might have
reached a different conclusion under the same factual situation.” Id. “‘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




       2
          On May 18, 2016, Hulme filed a motion to vacate the Consolidation Order. The trial
court issued a rule to show cause, but Hulme never pursued the motion to vacate. Defendants
moved to dismiss the motion to vacate for failure to comply with Rule 208.3(b)(2) of the Bucks
County Rules of Civil Procedure, which requires a moving party to file a praecipe to submit the
motion for disposition. B.C.R.C.P. No. 208.3(b)(2). If the moving party fails to file a Rule
208.3(b)(2) praecipe, any other party may file a praecipe to dismiss the motion. B.C.R.C.P. No.
208.3(b)(5). On November 3, 2016, the trial court dismissed Hulme’s motion to vacate pursuant
to local rule based on Hulme’s failure to praecipe the matter for disposition. On November 29,
2016, Hulme filed the same motion to vacate, which he later withdrew.
                                         MHW - 4
record, discretion is abused.’” Id. (quoting Paden v. Baker Concrete Construction,
658 A.2d 341, 343 (Pa. 1995)).
             Upon review, I do not believe that the trial court abused its discretion
by refusing to sever the consolidated cases. Setting aside the apparent problems with
the Praecipe to Discontinue and the trial court’s handling of it, which is troubling in
its own right, the fact remains that the trial court disposed of the motions for
summary judgment upon determining that the Praecipe to Discontinue discontinued
the entire matter as to all parties and all claims. Hulme failed to take appropriate
and timely remedial measures to correct this mistake. The trial court found that
Hulme’s own passivity, inattention and untimely filings have been the hallmark
throughout this litigation. Hulme offers no justification for his actions or inactions.
Hulme’s attempt to resurrect his discontinued claims is too little, too late in my view.
The majority’s disposition does not revive Hulme’s claims, but merely severs the
consolidated cases, which the trial court, rightly or wrongly, dismissed long ago.
             For these reasons, I would affirm.




                                        MICHAEL H. WOJCIK, Judge




                                      MHW - 5
