J-A07012-17
J-A07013-17
                            2018 PA Super 125


JENNIFER M. STRAW AND THOMAS P.           ¦   IN THE SUPERIOR COURT OF
STRAW, INDIVIDUALLY AND AS CO-            ¦         PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF           ¦
ELIJAH C. STRAW, DECEASED; AND            ¦
ROWAN J. STRAW, A MINOR, BY AND           ¦
THROUGH HIS PARENTS AND NATURAL           ¦
GUARDIANS, JENNIFER M. STRAW AND          ¦
THOMAS P. STRAW                           ¦
                                          ¦
                     v.                   ¦
                                          ¦
KIRK A. FAIR AND GOLON MASONRY            ¦
RESTORATION, INC.                         ¦
                                          ¦
                     v.                   ¦
                                          ¦
PITTSBURGH LUBES, INC. T/D/B/A JIFFY      ¦
LUBE, TOWER AUTO SALES & SERVICE,         ¦
NATIONAL AUTOMOTIVE PARTS                 ¦
ASSOCIATION-NAPA AUTO PARTS               ¦
T/D/B/A/ NAPA                             ¦
                                          ¦
                     v.                   ¦
                                          ¦
THOMAS P. STRAW                           ¦
                                          ¦
APPEAL OF: GOLON MASONRY                  ¦
RESTORATION, INC.                         ¦     No. 742 WDA 2016


               Appeal from the Judgment Entered April 28, 2016
              in the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): G.D. NO. 2013-003294



JENNIFER M. STRAW AND THOMAS P.           ¦   IN THE SUPERIOR COURT OF
STRAW, INDIVIDUALLY AND AS CO-            ¦         PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF           ¦
ELIJAH C. STRAW, DECEASED; AND            ¦
ROWAN J. STRAW, A MINOR, BY AND           ¦
THROUGH HIS PARENTS AND NATURAL           ¦
J-A07012-17
J-A07013-17

GUARDIANS, JENNIFER M. STRAW AND           ¦
THOMAS P. STRAW                            ¦
                                           ¦
                      v.                   ¦
                                           ¦
KIRK A. FAIR AND GOLON MASONRY             ¦
RESTORATION, INC.                          ¦
                                           ¦
                      v.                   ¦
                                           ¦
PITTSBURGH LUBES, INC. T/D/B/A JIFFY       ¦
LUBE, TOWER AUTO SALES & SERVICE,          ¦
NATIONAL AUTOMOTIVE PARTS                  ¦
ASSOCIATION-NAPA AUTO PARTS                ¦
T/D/B/A/ NAPA                              ¦
                                           ¦
                      v.                   ¦
                                           ¦
THOMAS P. STRAW                            ¦
                                           ¦
APPEAL OF: GOLON MASONRY                   ¦
RESTORATION, INC.                          ¦     No. 743 WDA 2016


               Appeal from the Judgment Entered April 28, 2016
              in the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): G.D. NO. 2013-003294

BEFORE:     OLSON, STABILE, AND STRASSBURGER,* JJ.

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:

                                                     FILED MAY 11, 2018

      Were I writing on a clean slate, I would quash this appeal as

interlocutory.   A majority1 of this panel holds that this appeal is properly



* Retired Senior Judge assigned to the Superior Court.

1 In addressing the merits of the issues raised on appeal in his dissenting
opinion, Judge Stabile in footnote 1 agrees with Judge Olson that this Court
                                                  (Footnote Continued Next Page)

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before this Court because there were not any pending claims remaining to

be disposed of by the trial court after Plaintiffs withdrew their punitive

damages claim without prejudice. Majority Memorandum at 25-26 n.11. To

support this, the Majority cites Levitt v. Patrick, 976 A.2d 581 (Pa. Super.

2009), and Bourne v. Temple Univ. Hosp., 932 A.2d 114 (Pa. Super.

2007). Both cases are materially distinguishable.

      In Levitt, Levitt filed a mortgage foreclosure action against Patrick;

Patrick pled a counterclaim for tortious interference.                 The claims and

counterclaim were bifurcated.              Levitt’s claim was tried first, resulting in a

verdict in favor of Patrick. Levitt appealed, and this Court issued a rule to

show cause why the appeal should not be quashed as interlocutory because

Patrick’s counterclaim was still pending. The parties agreed to discontinue

the counterclaim, but the record did not show that the discontinuance was

with prejudice. The Court held that “a claim need not be discontinued with

prejudice for this Court to have jurisdiction to entertain an appeal.” Levitt,

976 A.2d at 584.            It offered the following explanation, quoted by the

Majority.

            The key inquiry in any determination of finality is whether
      there is an outstanding claim. Pa.R.A.P. 341. … If any claim
      remains outstanding and has not been disposed of by the trial
(Footnote Continued)   _______________________



has jurisdiction to decide the substantive issues before us. Because two
judges agree that this Court has jurisdiction over the appeal, our jurisdiction
is established. Although I disagree with their conclusion as to jurisdiction, I
agree with Judge Olson’s disposition of the merits of the appeal.


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      court, then it does not matter whether the claim is classified as a
      counterclaim or a bifurcated claim, for the result is the same:
      this Court lacks jurisdiction to entertain the appeal unless the
      appeal is [immediately appealable as of right] or we grant
      permission to appeal. Pa.R.A.P. 341.

            Similarly, if a claim was discontinued prior to trial, we do
      not inquire whether the discontinuance was with or without
      prejudice. The Pennsylvania Rules of Civil Procedure permit a
      party to “commence a second action upon the same cause of
      action” after a discontinuance. Pa.R.C.P. 231. This second
      action is considered a new action and not a continuation
      of the initial action. Because a party may initiate a new
      action upon a discontinued claim, it follows that a discontinued
      claim is not before the trial court for resolution.

             Instantly, the parties jointly agreed to discontinue Patrick’s
      sole bifurcated counterclaim against Levitt. The parties further
      agreed that all issues that were not the subject of the trial of this
      matter have been disposed of. The discontinuance constitutes a
      final judgment as a matter of law. Because our finality inquiry
      has always focused on the existence of an outstanding claim, we
      need not examine whether Patrick’s bifurcated counterclaim was
      discontinued with or without prejudice.              There are no
      outstanding claims remaining and thus we have jurisdiction to
      consider this matter.

Majority Opinion at 25-26 n.11 (quoting Levitt, 976 A.2d at 588 (some

internal citations, quotations, and corrections omitted)) (emphasis added).

      In Bourne, the Bournes filed a medical malpractice complaint against

the hospital, Dr. Berman, and three others. After the Bournes failed to file a

required certificate of merit and were denied an extension, the hospital and

Dr. Berman obtained a judgment of non pros. The Bournes filed a petition

to open the judgment, the trial court denied it, and the Bournes appealed.

After the appeal was filed, the trial court allowed the Bournes to “withdraw”



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their claims against the other three defendants without prejudice.       This

Court indicated that this withdrawal rendered final the order denying the

petition to open the non pros judgment in favor of the hospital and Dr.

Berman. Bourne, 932 A.2d 115-16.

         The distinctions between these cases and the instant case are many

and clear. First, Plaintiffs’ decision to forego their punitive damages claim

without prejudice did not occur prior to trial; it happened in the middle of

trial.   Second, Plaintiffs did not discontinue causes of action prior to the

disposition of those claims; rather, they declined to have the same jury that

determined all other issues in the case render a decision as to one element

of damages.

         Third, and perhaps most importantly, Plaintiffs’ withdrawal of their

punitive damages claim expressly contemplates reviving it at a later date in

the pending case, not in a new action. In both Levitt and Bourne, any later

pursuit of the discontinued or withdrawn claims would take place in a new,

separately filed action; they would not be revived at a later time in the

same action.       Indeed, the fact that the discontinued claim could only be

pursued later in a separate action that would not be a continuation of the

pending action was the reason this Court in Levitt concluded that the claim

was not still pending before the trial court in the action at issue in the

appeal. Levitt, 976 A.2d at 588.




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      “The fair and efficient administration of justice cannot tolerate

‘piecemeal determinations and the consequent protraction of litigation.’”

Driver v. Temple, 543 A.2d 134, 140 (Pa. Super. 1988) (Kelly, J.,

dissenting) (citations omitted). In the interest of judicial economy, “[i]t is

more important to prevent the chaos inherent in bifurcated, trifurcated, and

multifurcated appeals than it is to correct each mistake of a trial court the

moment it occurs.” Calabrese v. Collier Twp. Mun. Auth., 248 A.2d 236,

238 (Pa. 1968) (O’Brien, J., dissenting). See also Hession Condemnation

Case, 242 A.2d 432, 437 (Pa. 1968) (O’Brien, J., dissenting) (“The

bifurcated appeal foisted upon the courts can only be termed a judicial

Hydra.   Would that a Hercules could appear … to slay this monster.”).

Therefore, I would hold that there remains an outstanding issue in the

present case and quash this appeal as interlocutory.

      However, both of my colleagues disagree with my assessment.

Therefore, this Court has jurisdiction over the merits of this appeal, and I

join in full Judge Olson’s opinion, with the exception of note 11.




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