J-A21030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

                            Appellant

                       v.

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

                            Appellees                 No. 447 EDA 2014


                  Appeal from the Order Dated January 27, 2014
             In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): September Term, 2013 No. 1552


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 02, 2014

        Helen Esbenshade, Esq., Administratrix and Personal Representative of

the Estate of Adylbek Murataliev, deceased (Esbenshade), appeals from the

order entered January 27, 2014 in the Court of Common Pleas of

Philadelphia County, granting the preliminary objections of defendants West


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Penn      Power,   First   Energy   Corporation   and   Allegheny   Energy,   Inc.

(collectively “West Penn”) and transferring the instant matter to Indiana

County on the basis of forum non conveniens. After a thorough review of

the submissions by the parties, relevant case law, and the certified record,

we affirm.

         We adopt the brief statement of the case as related in Esbenshade’s

brief.

         This case arises out of an incident which occurred on September
         19, 2011, wherein [Esbenshade’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, 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 live 12 kV overhead electrical power line, Mr.
         Murataliev was electrocuted and died.

         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). Importantly, the lawsuit filed by Messrs.
         Toktobaev and Dzhumaliev involves the exact same Defendants,
         as well as the same allegations of negligence. However, unlike
         this matter, the Toktobaev case is currently venued in
         Philadelphia County.

Esbenshade’s Brief at 4-5.




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      Procedurally, West Penn filed preliminary objections to Esbenshade’s

complaint, claiming, in relevant part, that venue in Philadelphia was

improper and in the alternative, the matter should be transferred to Indiana

County based on forum non conveniens. Esbenshade responded, in relevant

part, by arguing that the issue of forum non conveniens is not a proper

subject of preliminary objections. See Pa.R.A.P. 1028(a)(1) Note.

      By order of November 22, 2013, the trial court ordered an argument

and   evidentiary   proceeding      on    Defendants’    Preliminary    Objections

questioning venue. The hearing was scheduled for January 24, 2014. The

order also authorized the parties to conduct discovery on the issue, with the

trial court accepting affidavits, depositions or upon good cause, live

testimony on the issue. See Order, 11/22/2013.

      Substantially similar, if not identical, preliminary objections were filed

by West Penn in the lawsuit involving the co-workers.           Those preliminary

objections were assigned a different judge, The Honorable Frederica

Massiah-Jackson, for disposition. On January 17, 2014, one week prior to

the argument in the instant matter, venue in Philadelphia was affirmed in

the co-workers’ lawsuit.

      At the January 24, 2014 argument in the present matter, the trial

court took evidence, without objection, on both the issues of venue and

forum non conveniens.           Subsequently, the trial court sustained the

preliminary   objections   on    the     grounds   of   forum   non    conveniens.



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Esbenshade filed a 530-page motion for reconsideration that was denied.

This appeal followed.1

       The trial judge, the Honorable Marc I. Bernstein, provided the

following succinct reasoning for the transfer of the matter in his Pa.R.A.P.

1925(a) Opinion:

       The instant case arises out of an accident that occurred in
       Indiana County which is about 300 miles away from Philadelphia.
       Both the roof and the power lines at issue are located in Indiana
       County.      All Defendants except one are located outside
       Philadelphia.    Third parties who arrived after the accident
       occurred, including emergency responders, are located in
       Indiana County. If the case were tried in Philadelphia County,
       the Defendants, and other expected witnesses will be forced to
       incur significant travel expenses coming to Philadelphia.

Trial Court Opinion, 3/14/2014, at 3.

       Esbenshade raised five questions in the Statement of Questions

Involved in her Appellant’s Brief. They are:

       1) Whether the lower court abused its discretion, erred as a
       matter of law and/or exercised its judgment in a manifestly
       unreasonable manner by overruling another judge sitting in
       equal and coordinate jurisdiction, who overruled and struck
       down Preliminary Objections filed on the same grounds in
       another case involving the same parties and arising out of the
       same incident?

       2) Whether the lower court abused its discretion, erred as a
       matter of law and/or exercised its judgment in a manifestly
       unreasonable manner by misapplying Pennsylvania law
       governing change of venue when it improperly granted
____________________________________________


1
   The trial court did not order a Pa.R.A.P. 1925(b) statement and none was
filed.



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       Preliminary Objections on the basis of forum non conveniens,
       without following and adhering to Pennsylvania Rule of Civil
       Procedure 1006(d)[2] requiring a separate and properly filed
       petition to transfer venue?

       3) Whether the lower court abused its discretion, erred as a
       matter of law and/or exercised its judgment in a manifestly
       unreasonable manner by transferring venue on grounds of forum
       non conveniens raised in Preliminary Objections when venue was
       properly established in Philadelphia County?

       4) Whether the lower court abused its discretion and exercised
       its judgment in a manifestly unreasonable manner by
       transferring venue of the underlying case without giving proper
       deference and weight to [Esbenshade’s] choice of forum?

       5) Whether the lower court abused its discretion and exercised
       its judgment in a manifestly unreasonable manner by
       transferring venue of the underlying case without giving proper
       deference and weight to the fact that there were no facts on the
       record which clearly and properly established that [West Penn]
       would be inconvenienced, harassed and/or oppressed by
       [Esbenshade’s] chosen forum of Philadelphia County?

Esbenshade’s Brief at 3-4.

       Although Esbenshade initially raised five questions for review, there

were only four arguments developed substantively.

       A. The Lower Court abused its discretion and erred as a matter
       of law by overruling a judge of coordinate jurisdiction.

       B. The Lower Court abused its discretion and committed an error
       of law when it misapplied Pennsylvania law governing change of
       venue.

       C. The Lower Court abused its discretion and exercised its
       judgment in a manner manifestly unreasonable by transferring
____________________________________________


2
  The issue of Rule 1006(d) necessarily implies Pa.R.A.P. 1028 and 206.1 et
al. regarding petitions.



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       venue of the case without giving proper deference and/or weight
       to: (1) [Esbenshade’s] choice of venue; (2) the location of the
       party and expert witnesses; and (3) the location of the
       TranzSporter roofing hoist, model number LH4000.

       D. The Lower Court abused its discretion and erred as a matter
       of law when it failed to obey and follow the Pennsylvania Rules of
       Civil Procedure’s strict 1006(d) requirements.

See Esbenshade’s Brief at i-ii.3

       Esbenshade’s first issue is that Judge Bernstein abused his discretion

and/or committed an error of law by transferring this matter to Indiana

County pursuant to forum non conveniens, thereby violating the coordinate

jurisdiction rule.

       As noted above, there is a separate, but related case, involving the

injuries suffered by Murataliev’s co-workers.4       Similar, if not identical,

preliminary objections were filed by West Penn in that matter.              Judge

Massiah-Jackson denied the preliminary objections in the related matter by

Order dated January 17, 2014, finding appropriate venue in Philadelphia
____________________________________________


3
  The fact that Esbenshade listed six issues in the Statement of Question
Involved, but raised only four in the argument section leads to some
confusion, especially when the phrasing of the questions and arguments are
different. Our review of the argument section reveals the four questions
argued relate to three of the questions initially listed. Argument A relates to
Question 1; arguments B and D relate to Question 2; and Argument C
relates to Question 4. Those Questions listed but not argued are waived.
See In re T.M.T., 64 A.3d 1119, 1122 n.2 (Pa. Super. 2013) (issues not
discussed in argument section of brief are abandoned).
4
  There is another related case, but which has no impact on this appeal.
That matter is a declaratory judgment action, Atlantic Casualty Ins. Co. v.
Dzhunusheliev, 1312-02638.



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County.      At the argument, and now on appeal, Esbenshade argues that

Judge Bernstein was compelled to follow Judge Massiah-Jackson’s order

pursuant to the coordinate jurisdiction rule.

       We begin by noting our appropriate scope and standard of review.

       Review of an order regarding an exception to the coordinate
       jurisdiction rule, [. . .], is a question of law. Thus, our standard
       of review is de novo. To the extent necessary, our scope of
       review is plenary as this court may review the entire record in
       making its decision.

Zane v. Friends Hospital, 836 A.2d 25, 30 (Pa. 2003) (citations omitted).

       The Zane decision also provided a definitive statement regarding the

application of the coordinate jurisdiction rule.

       Generally, the coordinate jurisdiction rule commands that upon
       transfer of a matter between trial judges of coordinate
       jurisdiction, a transferee trial judge may not alter resolution of a
       legal question previously decided by a transferor trial judge.

Id. at 29.

       As our Supreme Court explained, coordinate jurisdiction is implicated

when a single matter is transferred between judges.        Here, Esbenshade is

seeking to apply coordinate jurisdiction to two related, but separate

matters.5     Therefore, the decision before us is not one that altered a

____________________________________________


5
  The instant matter was assigned the Court, Term and Number: 1309-
01552 (2013, September, Number 1552).           The matter before Judge
Massiah-Jackson, Toktobaev v. Alpha Contracting III, LLC, et al, was
docketed at 1309-00537. At the time of the appeal, the cases had not been
consolidated and no motion for consolidation appeared on the docket.




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J-A21030-14



previous decision from a transferor judge and the coordinate jurisdiction rule

is not applicable.    Accordingly, Esbenshade is not entitled to relief on this

issue.

         The issues found in Sections B and D are related and will be addressed

together.     These arguments claim the issue of forum non conveniens was

improperly raised in preliminary objections and so the trial court should not

have addressed the issue.        Additionally, having done so, the trial court

improperly proceeded without allowing Esbenshade the opportunity to

conduct discovery as mandated by Pa.R.C.P. 1006(d).         These issues have

been waived.

         Initially, we note that in the response to preliminary objections,

Esbenshade argued that pursuant to Pa.R.C.P. 1028, the issue of forum non

conveniens was not a proper subject for preliminary objections. The Note to

Rule 1028 states:

         Of the three grounds available to challenge venue, only improper
         venue may be raised by preliminary objection as provided by
         Rule 1006(e). Forum non conveniens and inability to hold a fair
         and impartial trial are raised by petition as provided by Rule
         1006(d)(1) and (2).

Pa.R.C.P. 1028 Note.

         Preliminarily, it appears the issue has been preserved.   However, at

the January 24, 2014 argument the trial court asked counsel if the argument

was “improper venue or forum non conveniens?”            See N.T. Argument,




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J-A21030-14



1/24/2014, at 5. Counsel for West Penn answered that both issues had been

raised. Counsel for Esbenshade did not object.

        Later, after Counsel for West Penn explained the venue argument, the

trial court stated: “Okay.           Continue with forum non conveniens.     I

understand your venue argument.” Id. at 8. Again, no objection to forum

non conveniens was raised.

        After West Penn finished its argument, counsel for Esbenshade

responded.

        Counsel: Good morning, Your Honor.

        I’ll do the best I can to kind of deal with some of the arguments
        that were made because, admittedly, some of these have been
        raised for the first time this morning. For example, I was just
        provided with four separate affidavits[6] about two minutes
        before Your Honor took the bench. And I haven’t really had an
        opportunity to go through and analyze exactly what they say.

        The Court: Do you want me to continue this until Monday?

        Counsel: No.     I’m happy to address them the best I can right
        now.

Id. at 18.

        Counsel had the opportunity to object to the presentation of forum non

conveniens evidence but did not. Additionally, the trial court gave counsel

the opportunity to continue the argument to provide more time, but counsel

declined.
____________________________________________


6
    The affidavits addressed concerns of forum non conveniens.




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       Further, West Penn claimed although the forum argument had been

denied by Judge Massiah-Jackson in the co-workers case on the grounds it

had been improperly raised in preliminary objections, he nonetheless

believed he could raise the issue in preliminary objections as an alternative

to the venue question.7 Counsel for Esbenshade did not object. See N.T.

Argument, 2/24/2014 at 22-23.

       Finally, as the argument concluded, counsel for Esbenshade actively

argued the issue of forum non conveniens.

       COUNSEL: So we have three workers, we have a defendant
       located in Philadelphia County, and we have a defendant located
       in Atlanta, Georgia. So we have two defendants that I think
       Philadelphia would in fact be a more convenient forum than
       Indiana County, as compared to some of the other defendants
       that would claim otherwise.

       And, again, I have not had a chance to look at any type of detail
       in the affidavits that I was just presented with, but –

       THE COURT: Do you want me to bring you all back on Monday so
       that you have an opportunity to review the evidence that was
       first presented today?

       COUNSEL: No. I’m confident on the papers, Your Honor, that we
       have sustained our burden to win on both venue and forum non
       conveniens.

       And, again, I think for the convenience of the litigation going
       forward, where we already have the other two claim with the
____________________________________________


7
  Counsel for West Penn made this assertion at argument as well as in
Appellee’s Brief, but has provided no citation to support the claim. We are
not aware of any authority specifically allowing forum non conveniens to be
argued in the alternative in preliminary objections.



                                          - 10 -
J-A21030-14



       same arguments made and rejected by the Court, I think for the
       convenience of this litigation going forward that this case should
       be maintained here in Philadelphia County as well because
       certainly these cases will be consolidated at some point, if not in
       the very near future.

Id. at 31-32.

       The record demonstrates conclusively that Esbenshade had multiple

opportunities to object to the presentation of evidence regarding forum non

conveniens, but failed to do so.               Additionally, counsel twice refused a

continuance, and argued the substance of the issue before the trial court.

We do not believe that Esbenshade can now complain the issue should not

have been addressed. Accordingly, we find this procedural objection to be

waived.

       Included in the argument regarding the application of Rule 1028 and

1006 is the claim that trial court erred in failing to obey the requirements of

Pa.R.C.P. 1006(d) without allowing the opportunity to conduct discovery.8

       This aspect of the issue has also been waived. First, we note that the

order scheduling the argument specifically allowed for discovery. However,

the order only specifically mentioned venue, not forum non conveniens,

therefore, we will allow for reasonable miscommunication regarding the

limits of discovery.
____________________________________________


8
  While Rule 1006(d) does not specifically mention discovery, case law
applying Rule 1006(d) notes that Rules 206.1, etc. are necessarily implied.
See Hosiery Corp. of America, Inc. v. Rich, 476 A.2d 50, 51 (Pa. Super.
1984), citing prior Rules 206-209.




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J-A21030-14



        Nonetheless, at argument both parties participated in the discussion of

forum     non   conveniens      and    counsel     for   Esbenshade   twice   declined

continuances on the issue, never requested discovery, and specifically went

forward with the argument on the strength of the submitted affidavits and

other documentation. Because the issue was not preserved with the lower

court, it has been waived.

        Esbenshade’s final argument claims the trial court improperly weighed

the evidence in transferring the case to Indiana County.9             This issue was

never raised before the trial court and is, therefore, waived.10 See Pa.R.A.P.

302(a) (issues may not be raised for the first time on appeal). Accordingly,

Esbenshade is not entitled to relief on this issue.

        Because the coordinate jurisdiction rule is not implicated in this matter

and all other issues have been waived, we affirm the order transferring this

matter to Indiana County based on forum non conveniens.11


____________________________________________


9
  We include in this issue the argument from Section D 2, which claims the
trial court improperly credited the self-serving evidence presented by West
Penn.
10
   The only issue preserved in Esbenshade’s motion for reconsideration
addressed the application of the coordinate jurisdiction rule.
11
  Because we were not required to address the merits of the trial court’s
decision on forum, we need not address the application of Cheeseman v.
Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997), and our Supreme
Court’s most recent discussion of forum non conveniens found in Bratic v.
Rubendall, No. 21 EAP 2013 (August 18, 2014).



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     Order affirmed.

     Judge    Bowes    files   a   concurring   memorandum   in   which   Judge

Strassburger joins.

     Judge Strassburger files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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