J-S78042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MANAGEMENT SCIENCE ASSOCIATES                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

SYMPHONY HEALTH SOLUTIONS CORP.

                             Appellant                 No. 832 WDA 2016


                  Appeal from the Order Entered May 12, 2016
         in the Court of Common Pleas of Allegheny County Civil Division
                            at No(s): GD-15-022222

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED FEBRUARY 1, 2017

         Appellant, Symphony Health Solutions Corp., appeals from the order

entered in the Allegheny County Court of Common Pleas granting the motion

filed by Appellee, Management Science Associates, to coordinate two related

actions. Appellant contends the court misapplied Pa.R.C.P. 213.1 in ordering

the coordinated action should proceed in Allegheny County. We affirm.

         On December 1, 2015, Appellant filed a Praecipe for Summons in a

civil action against Appellee in the Montgomery County Court of Common

Pleas.    R.R. at 19a.1    On December 15, 2015, Appellee filed a complaint

against Appellant in Allegheny County. Id. at 6a. On December 23, 2015,

Appellant filed its complaint against Appellee in Montgomery County. Id. at

*
    Former Justice specially assigned to the Superior Court.
1
  For the parties’ convenience, we refer to the reproduced record where
applicable.
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30a, 69a. On January 18, 2016, Appellee filed its motion to consolidate the

two actions pursuant to Pa.R.C.P. 213.1 in Allegheny County. Id. at 3a. On

May 12, 2016, the court granted the motion and ordered the consolidation of

the two actions in Allegheny County.        Id. at 125a.      This timely appeal

followed.2

      Appellant raises the following issues for our review:

         1. Whether, in making its determination pursuant to
         Pa.R.C.P. 213.1, the Trial Court should have considered
         that [Appellant] filed the action in Montgomery County
         before Appellee filed the action in Allegheny County.

         2. Whether the Trial Court erred where the sole basis for
         its decision coordinating the action in Allegheny County
         was its erroneous finding that Appellant filed a declaratory
         judgment action in Montgomery County to deprive
         Appellee of its choice of forum.

         3. Whether the Trial Court erred because it held that the
         mere filing of a declaratory judgment action is a factor to
         be considered in determining Appellee’s motion to
         coordinate pursuant to Pa.R.C.P. 213.1.

Appellant’s Brief at 2-3 (citations omitted).

      First, Appellant contends “there can be no dispute that [it] initiated the

Montgomery County action by filing its writ of summons before Appellee




2
  We note initially   that “orders transferring and consolidating cases under
Pa.R.Civ.P. 213.1     are interlocutory orders appealable as of right under
Pa.R.A.P. 311(c).”    Richardson Brands, Inc. v. Pennsylvania Dutch Co.,
Inc., 592 A.2d 77,    81 (Pa. Super. 1991).




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J-S78042-16


initiated the Allegheny County Action.” Id. at 9.3 Appellant claims Appellee

filed in the wrong court. We disagree.

       Rule 213.1 provides, in pertinent part, as follows:

           (a) In actions pending in different counties which involve a
           common question of law or fact or which 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.

Pa.R.C.P. 213.1(a) (emphasis added). The comment to Rule 213.1(a) states

that

           [s]ubdivision (a) provides the procedure for obtaining an
           order of coordination: motion, answer and hearing. The
           procedure is deliberately left general and flexible. The two
           stated requirements are that the motion must be “with
           notice to all other parties” and that the request be made to
           “the court in which a complaint was first filed”.
           Notice must be given to all parties in all actions which are
           to be coordinated.        The court in which the first
           complaint was filed establishes a forum for the
           coordination proceedings.

Pa.R.C.P. 213.1 cmt. (emphases added); accord VMB Enterprises, Inc. v.

Beroc, Inc., 891 A.2d 749, 752 (Pa. Super. 2006) (holding motion for

coordination could only be granted by the court in which the complaint was

first filed).



3
  In response to Appellee’s motion to consolidate the actions, Appellant
averred “the only factor this [c]ourt should consider in deciding the Motion is
where the case was first-filed.” R.R. at 159a.




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      In the case sub judice, the first complaint was filed in Allegheny

County. Therefore, the motion pursuant to Rule 213.1 was properly filed in

Allegheny County.    See Pa.R.C.P. 213.1(a); VMB Enterprises, Inc., 891

A.2d at 752.

      We address Appellant’s remaining two issues together because they

are interrelated. Appellant argues that

         the [t]rial [c]ourt held that the coordinated action should
         proceed in Allegheny County. The [t]rial [c]ourt’s holding
         was based solely on its finding that “the apparent reason
         for [Appellant’s] instituting a declaratory judgment action
         in Montgomery County [was] to deprive [Appellee] of
         choice of forum. But the [t]rial [c]ourt’s holding lacks any
         basis in the record or under applicable law.

                                  *    *    *

            There is no legal basis supporting the [t]rial [c]ourt’s
         holding that [Appellant’s] filing of a declaratory judgment
         action should be a factor used to determine where a
         coordinated action should proceed.

Appellant’s Brief at 10, 12. No relief is due.

      “We review an order coordinating actions under Rule 213.1 for abuse

of discretion by the trial court. Where the record provides a sufficient basis

to justify the order of coordination, no abuse of discretion exists.”    VMB

Enterprises, Inc., 891 A.2d at 752 (citation omitted).

      In Osram Sylvania Prod., Inc. v. Comsup Commodities, Inc., 845

A.2d 846 (Pa. Super. 2004), this Court opined:




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           Pennsylvania law clearly gives great weight to the
        plaintiff’s choice of forum. . . .

           Under the theory propounded by OSRAM, any time
        there is a contract dispute, the defendant could defeat
        the plaintiff’s choice of forum by winning the race to
        the courthouse and filing a declaratory judgment
        action claiming that no contract existed or that the
        contract was somehow defective. This is not the purpose
        of a declaratory judgment action.       The purpose of a
        declaratory judgment action is to afford relief from
        uncertainty and insecurity with respect to legal rights,
        status and other relations. It is not meant to be a vehicle
        by which a defendant may usurp the plaintiff’s right to
        select jurisdiction.

                                 *    *    *

        OSRAM’s declaratory judgment action only sought to
        adjudicate defenses it had to Comsup’s original claims.

Id.at 849-50 (emphasis added) (citations omitted).

     Instantly, the trial court opined:

           Both parties agree that this court should order
        coordination. The dispute is over whether the coordinated
        proceedings should occur in the Common Pleas Court of
        Allegheny County or the Common Pleas Court of
        Montgomery County.

          I find that no factors clearly favor coordination in
        Montgomery County.

           I find that the action should be coordinated in Allegheny
        County because [Appellant’s] apparent reason for
        instituting a declaratory judgment action in Montgomery
        County is to deprive [Appellee] of its choice of forum,
        which choice is well-recognized in Pennsylvania appellate
        court case law. The case should be tried in Allegheny
        County in order to prevent [Appellant] from defeating
        [Appellee’s] right, as the actual moving party, to select the
        forum for resolving the sixteen-page Complaint for unpaid
        invoices.


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R.R. at 124a.4

      Our review reveals no basis to disturb the trial court’s analysis. In its

complaint, Appellee avers that they had entered into a master services

agreement with Appellant which contained a confidential statement of work

(“SOW”). Id. at 7a. Appellee “properly invoiced [Appellant] for the services

and licensed materials provided by [Appellee] to [Appellant] pursuant to the

[SOW].” Id. Appellee contends that Appellant paid certain invoices but not

all of the properly issued invoices.   Id.   Appellant “materially breached its

contractual obligations to [Appellee] by failing to pay [Appellee] for the

services performed and for the licensed materials, causing [Appellee]

significant damages.” Id. at 8a. Appellee contends that Appellant “does not

have a legal or factual basis to dispute the accuracy or correctness of the

invoices, but rather [Appellant] has simply refused to pay the balances

owed.” Id. at 9a.

      Appellant, in turn, filed a complaint seeking a declaratory judgment.

Appellant contends that “the SOW required [Appellant] to pay [Appellee] a

monthly operations fee . . . . The Operations Fee would be increased in each

of years two through five of the SOW pursuant to an agreed-upon cost of




4
 In support of its decision in the case sub judice, the trial court refers to its
November 8, 2001 Memorandum in an unrelated case. See R.R. at 126a-
131a.



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living adjustment (the “COLA”). Id. at 71a. Appellant contends there are

“genuine and current controversies concerning” the following claims:

        a. Whether [Appellee] owes [Appellant] $250,000 because
        [Appellant] overpaid the License Fee during the first year
        of the SOW;

        b. Whether [Appellee] was entitled to a License Fee during
        the second year of the SOW;

        c. Whether [Appellee] misapplied the COLA for the second
        year of the SOW;

        d. Whether [Appellee] was entitled to an Early Termination
        Fee under the SOW;

        e. Whether [Appellee] was entitled          to   a   second
        Implementation Fee under the SOW; and

        f. Whether [Appellee] overcharged [Appellant] for other
        amounts under the SOW.

Id. at 74a.

     Thus, Appellant’s declaratory judgment action sought to adjudicate

defenses it had to Appellee’s original claims. See Osram Sylvania Prod.,

Inc., 845 A.2d at 849-50.     Appellant cannot usurp Appellee’s choice of

forum. See id.    Accordingly, we discern no abuse of discretion by the trial

court in coordinating the actions in Allegheny County.            See VMB

Enterprises, Inc., 891 A.2d at 752.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/1/2017




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