J-A01008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRANDON F. WOMACK AND HOMELAND                 IN THE SUPERIOR COURT OF
INTELLIGENCE AND PROTECTIVE                          PENNSYLVANIA
SERVICES, LLC,


                            v.

NEIGHBORHOOD SECURITY PATROL AND
HARRY MEARING, III

                           Appellants
                                                   No. 1629 WDA 2015


                     Appeal from the Order October 1, 2015
              In the Court of Common Pleas of Washington County
                     Civil Division at No(s): No. 2015-4739


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED MAY 10, 2017

       Neighborhood Security Patrol and Harry Mearing, III, appeal from the

October 1, 2015 order dismissing a lawsuit that they filed in Philadelphia

County and ordering that it be consolidated with this action, which was

instituted by Appellees Brandon F. Womack and Homeland Intelligence and

Protective Services, LLC.1 We reverse.



____________________________________________


1
  We have jurisdiction over this interlocutory appeal pursuant to Pa.R.A.P.
311(c), which provides that “an appeal may be taken as of right from an
order in a civil action or proceeding changing venue, [or] transferring the
matter to another court of coordinate jurisdiction ...” Pa.R.A.P. 311(c). See
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court.
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      On August 3, 2015, Appellees instituted this case against Appellants in

the Court of Common Pleas of Washington County at docket number 2015-

4739, by filing a complaint and averring the following. On February 1, 2015,

Mr. Womack, Mr. Mearing, and Ashley Rodrigues, who was not a named

party, entered into a written agreement to operate and manage a limited

liability company with a registered business name of Homeland Intelligence

and Protective Services, LLC., with Mr. Womack as the managing member.

The agreement in question was attached to the complaint, and it indicated

that each party contributed capital. Pursuant to the terms of the accord, the

company was created to provide protection and investigation services to the

private sector.

      In their complaint, Appellees also alleged the following. Each member

made the initial capital contributions to Homeland Intelligence and Protective

Services, LLC reflected in the agreement, and, as the company was being

operated, Mr. Womack made additional capital contributions in order to keep

it solvent.   On May 8, 2015, the three members agreed to dissolve the

Homeland Intelligence and Protective Services, LLC.         As part of that

dissolution, Mr. Womack and Mr. Mearing contractually agreed that Mr.

Mearing would pay Mr. Womack the amount of capital he contributed to the

                       _______________________
(Footnote Continued)

Digimatics, Inc. v. ABC Advisors, Inc., 760 A.2d 390, 391 n.1 (Pa.Super.
2000).



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company and that Mr. Womack could keep the name and business identified

as Homeland Intelligence and Protective Services, LLC.       In the complaint,

Appellees claimed that Mr. Mearing did not pay Mr. Womack his capital

contributions and that Mr. Mearing continued to operate the same business

as Homeland Intelligence and Protective Services, LLC, but merely utilized

the name of Neighborhood Security Patrol, a fictitious name registered by

Mr. Mearing.

       Appellees additionally set forth the following in their complaint.    On

June 17, 2015, they filed a lawsuit in the magisterial district court located at

3441 Millers Run Road, Cecil, docketed at CV-58-15. Appellants thereafter

informed the magisterial district court and Appellees that they would be

filing a counter-claim against Appellees that would exceed the jurisdictional

limits of that court.       The complaint thereafter states, “[P]ursuant to 42

Pa.C.S. § 5103,[2] Plaintiffs hereby timely file this action in the Court of

Common Pleas of Washington County, and will supplement this filing with

the certified record of the Magisterial District Court action.”     Complaint,



____________________________________________


2
    Section 5103 of Title 42, which is set forth in full in the text, infra,
requires a court, including a magisterial district court, that does not have
jurisdiction over a matter brought before it to transfer that matter to the
court with jurisdiction rather than dismiss it. Section 5103 also indicates
that the case will be considered as filed as of the date it was brought in the
incorrect court instead of when it was transferred.



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8/3/15, at 16.    Appellees pled causes of action in breach of contract and

unjust enrichment.

      On September 16, 2015, before service of process was achieved,

Appellees filed a motion to coordinate and consolidate actions pursuant to

Pa.R.C.P. 213.1. That rule controls the coordination and consolidation of

actions relating to the same subject matter and will be set forth, infra. In

the consolidation motion, it was averred that on June 21, 2015, Appellants

filed an action against Appellees in the Court of Common Pleas of

Philadelphia County that related to the same legal issues and pertinent facts.

Appellees‟ position was that they were the first to file a complaint regarding

the pertinent events, as follows.     “This matter [i.e, docket number 2015-

4739 in the Court of Common Pleas of Washington County] was originally

initiated as a civil action by Plaintiffs against Defendants on June 17, 2015,

in the Magisterial District Court 27 – 03 -06 and docketed at CV – 58 -15.”

Motion to Coordinate and Consolidate Actions, 9/16/15, at ¶ 2.         Appellees

continued that, on “June 21, 2015, Defendants filed a civil action against

Plaintiffs in the Court of Common Pleas of Philadelphia County, Pennsylvania,

related to the same legal issues and operative facts.” Appellees then noted

that, in the Philadelphia County action, “Defendants‟ claim is for an amount

in excess of the jurisdictional limits of the District Magistrate‟s Office.” Id. ¶

4.   Appellees next averred that “to facilitate subject matter jurisdiction,




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Plaintiffs timely filed [the present] action in the Washington County Court of

Common Pleas of Washington County[.]” Id. at ¶ 5.

      In requesting consolidation in the Court of Common Pleas of

Washington County under Pa.R.C.P. 213.1, Appellees maintained that

“pursuant to 42 Pa.C.S. § 5103, when the Magisterial District lacks

jurisdiction over the action, it shall not quash or terminate the action, but

rather the action should be transferred or re-filed in [the] appropriate court

and shall be deemed filed on the date the action was first filed in the

Magisterial District.” Id. at 8. Appellees averred that, due to the complaint

filed in magisterial district court, they were the first to file a complaint

regarding the subject matter of the two lawsuits, and that the Philadelphia

action should be consolidated with the present one.

      Appellants filed an answer and memorandum of law in opposition to

the motion to coordinate and consolidate. Appellants asked that this lawsuit

be transferred and consolidated with the Philadelphia County action that

they had instituted at docket number June Term, 2015, number 2642.

Appellants noted that they filed their complaint on June 19, 2015, not June

21, 2015, as stated by Appellees. A copy of the complaint presented in the

Philadelphia lawsuit was attached to Appellants‟ motion,        It concerns the

same subject matter as this lawsuit, and was filed on June 19, 2015.

      Appellants   then   denied   that   Appellees   brought   a   case   in   the

magisterial district court against Appellants, and attached as an exhibit to

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the response to the consolidation motion a copy of the civil complaint filed

by Appellees at CV-58-15 on June 17, 2015, in the magisterial district court.

That complaint was filed by Mr. Womack alone, the sole defendant was Mr.

Mearing, and Mr. Womack asked for a “judgment against [Mr. Mearing] for

$12,000 together with costs.”     Defendants[‟] Answer to Plaintiff[s‟] Motion

to Coordinate and Consolidate Actions, 10/1/15, at Exhibit B page 1.

Appellants further noted that service of process was never achieved in the

magisterial district court matter, which remained pending, and that the

magisterial district court never transferred the case to any other court.

      On October 1, 2015, the trial court herein granted Appellees‟ motion to

consolidate and coordinate and ordered that the Philadelphia County case be

terminated and consolidated with this lawsuit.       The court accepted the

premise that Appellees had filed a complaint first concerning the subject

matter of the two lawsuits when Mr. Womack filed the complaint in the

magisterial district court on June 17, 2015, and it reasoned that the June 17,

2015 magisterial district court case had been transferred to this action.

      Appellants filed this timely appeal from the October 1, 2015 order, and

raise these issues:

      1. Whether the trial court committed an error of fact and/ or law
      and/ or abused its discretion in exercising personal jurisdiction
      over the Appellants as Appellees failed to perform original
      service of process?




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      2. Whether the trial court committed an error of fact and/ or law
      and/ or abused its discretion in applying Pa.R.C.P. §5103 [sic],
      transfer of erroneously filed matters.

      3. Whether the trial court committed an error of fact and/ or law
      and/ or abused its discretion in failing to apply Pa.R.C.P. §213.1
      factors in coordinating actions in different counties?

Appellants‟ brief at 4.

      We conclude that the trial court committed legal error in holding that

the complaint herein was filed before the one in Philadelphia County, and

therefore hold that its October 1, 2015 order dismissing the Philadelphia

action and ordering its consolidation with this case must be reversed. We

find that the complaint in Philadelphia was filed first, and thus, the trial court

herein did not have jurisdiction to decide the coordination issue. In light of

this determination, we do not need to address the first issue raised in this

appeal.

      Initially, we observe that: “We review an order coordinating actions for

abuse of discretion by the trial court.” Dillon McCandless King Coulter &

Graham, LLP v. Rupert, 81 A.3d 912, 918 (Pa.Super. 2013) (citation

omitted).   A trial court commits an abuse of discretion when it fails to

properly apply the applicable law. In re Adoption of A.P., 920 A.2d 1269,

1273 (Pa.Super. 2007) (citation and quotation marks omitted; emphasis

added) (“An abuse of discretion occurs when the course pursued represents

not merely an error of judgment, but where the judgment is manifestly




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unreasonable or where the law is not applied or where the record shows

that the action is a result of partiality, prejudice, bias or ill will.”).

      Herein, the Washington County Court of Common Pleas ordered

coordination of the Philadelphia court proceeding with the action herein

pursuant to Pa.R.C.P. 213.1, which states:

      (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.

      (b) The court in which the complaint was first filed may
      stay the proceedings in any action which is the subject of the
      motion.

Pa.R.C.P. 213.1 (emphases added). The comment to this rule delineates,

“Subdivision    (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.’”                       Pa.R.C.P. 213.1

Explanatory Comment-1990 (emphasis added).                 The comment continues,

“The court in which the first complaint was filed establishes a forum for

the coordination proceedings.” Id. (emphasis added).

      In this case, there is no apparent dispute that the action instituted by

Appellants in Philadelphia County concerns the same transactions, parties,



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and facts as those in this lawsuit. The critical inquiry is which complaint was

filed first. As noted, Appellees‟ position was that their complaint was filed

first because it was filed in the magisterial district court on June 17, 2015,

two days before Appellants‟ Philadelphia case. Appellees‟ consistent position

has been that, by filing this lawsuit, they transferred the magisterial district

court case to the Washington County Court of Common Pleas because it was

erroneously filed at the magisterial district court as the amount at issue

exceeded that court‟s jurisdiction. Appellees have insisted that the date of

the filing of the magisterial district court case, June 17, 2015, must be used

in determining whether Appellee‟s complaint or the one in Philadelphia,

which was filed on June 19, 2015, was filed first.         In ordering that the

Philadelphia case be dismissed and that the matter proceed in Washington

County, the court accepted Appellees‟ premises.

       There are three fatal flaws in Appellees‟ position. First, the action filed

in the magisterial district court was within its jurisdiction.        The record

establishes that Mr. Womack asked for a judgment in the amount of

$12,0003 plus interest and costs in that court, and, under 42 Pa.C.S. §

1515(a)(3), “magisterial district judges shall . . . have jurisdiction of . . .

[c]ivil claims . . . wherein the sum demanded does not exceed $12,000,

____________________________________________


3
  While Mr. Womack averred that Mr. Mearing owed him approximately
$18,000, Mr. Womack did not seek a judgment in that amount against Mr.
Mearing.



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J-A01008-17




exclusive of interest and costs[.]”       In their motion to consolidate and

coordinate, Appellees admitted that Appellants did not file a counter-claim in

the magisterial district court that deprived it of jurisdiction. They took the

legally incorrect position that the action filed in the Court of Common Pleas

of Philadelphia County constituted a counterclaim to the complaint filed in

the magisterial district court, that the Philadelphia Court case involved an

amount in excess of the jurisdictional limits of the magisterial district court,

and the magisterial district court was thereby deprived of jurisdiction due to

the filing of the Philadelphia lawsuit.

      This factual posture is legally untenable. An action filed in a court of

common pleas simply does not and cannot constitute a counterclaim in

another case filed in a different county before another court.       Thus, the

magisterial district court did have jurisdiction over the claim filed before it,

and there was no pending counterclaim before the magisterial district that

deprived it of jurisdiction. Contrary to Appellees‟ stance, because the court

had jurisdiction, the magisterial district court matter could not be transferred

pursuant to 42 Pa.C.S. § 5103, which provides:

      If an appeal or other matter is taken to or brought in a
      court or magisterial district of this Commonwealth which
      does not have jurisdiction of the appeal or other matter,
      the court or magisterial district judge shall not quash such
      appeal or dismiss the matter, but shall transfer the record
      thereof to the proper tribunal of this Commonwealth,
      where the appeal or other matter shall be treated as if originally
      filed in the transferee tribunal on the date when the appeal or
      other matter was first filed in a court or magisterial district of


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J-A01008-17



      this Commonwealth. A matter which is within the exclusive
      jurisdiction of a court or magisterial district judge of this
      Commonwealth but which is commenced in any other tribunal of
      this Commonwealth shall be transferred by the other tribunal to
      the proper court or magisterial district of this Commonwealth
      where it shall be treated as if originally filed in the transferee
      court or magisterial district of this Commonwealth on the date
      when first filed in the other tribunal.

42 Pa.C.S. § 5103 (emphases added).

      The second critical problem with Appellees‟ position is that the

magisterial district court never transferred its case to this docket number.

To the contrary, Appellees instituted the action before the magisterial district

court, and then separately filed this lawsuit in the Court of Common Pleas of

Washington County.       In their complaint, Appellants alleged that, by

instituting this lawsuit, they had transferred the case under 42 Pa.C.S. §

5103 from the magisterial district court to the court of common pleas.

Simply put, they did not have the authority to undertake this action. The

statute in question clearly accords that power only to the court. In addition,

filing a separate action in a different court does not constitute a “transfer.”

Thus, Appellees did not transfer the magisterial district court matter to the

Washington County Court of Common Pleas when they filed the complaint at

docket number 2015-4739.

      In summary, the record herein establishes conclusively that the

magisterial district court not only had jurisdiction over the complaint filed by

Mr. Womack, it did not transfer the matter to this civil action.     Thus, the



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complaint in civil action 2015-4739 in the Court of Common Pleas of

Washington County was filed on August 3, 2015, and the complaint at

docket number 2642, June Term, 2015, in the Philadelphia Court of Common

Pleas was filed on June 19, 2015. The Philadelphia County complaint was

filed first, and Pa.R.C.P. 213.1 firmly places jurisdiction over a request for

consolidation and coordination in the court where the complaint was first

filed. Since the Philadelphia complaint was filed before the complaint herein,

the trial court in this lawsuit did not have jurisdiction to decide the

coordination issue under Pa.R.C.P. 213.1, and it should have transferred that

request to the Philadelphia County Court of Common Pleas action filed at

docket number 2642, June Term, 2015.

      The final reason that Appellees improperly prevailed in the trial court

pertains to application of Digimatics, Inc. v. ABC Advisors, Inc., 760

A.2d 390 (Pa.Super. 2000).     In that case, the parties filed countervailing

lawsuits concerning the same subject matter. Both parties filed their cases

in the magisterial district courts, but in different counties.   ABC‟s action

before the magisterial district court was instituted first in Franklin County

while Digimatics‟ case was filed before a magisterial district court in

Delaware County.     Both parties obtained default judgments before the

magisterial district courts, and both judgments were appealed to the

respective courts of common pleas.




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      Then, Digimatics filed its complaint in the Court of Common Pleas of

Delaware County while ABC later filed a complaint in the Court of Common

Pleas of Franklin County.     Thus, although ABC filed a complaint with the

magisterial district court first, Digimatics filed its complaint first in the court

of common pleas.         Both parties presented countervailing motions to

consolidate under Pa.R.C.P. 213.1. The Franklin County court decided that

Digimatics was the first one to file a complaint and concluded that the

consolidation motion had to be decided in Delaware County, where the first

complaint was filed. The Franklin County court stayed the Franklin County

litigation and transferred the matter to Delaware County.

      On appeal, we affirmed. This Court held, “When read in the context of

the rule as a whole, we conclude that „court‟ unambiguously refers to the

court of common pleas and not the district justice.”           Id. at 392.     We

continued that the “court to which the motion to coordinate is directed is the

same court in which the complaint is first filed.” Id. at 393. The Digimatics

Court then ruled that, since a motion to consolidate “can be directed only to

a court of common pleas, we must look to that court to determine which

complaint is filed first. This necessarily excludes consideration of filings with

the district justice.    Thus, we conclude that Rule 213.1 contemplates

consideration only of complaints filed in the Courts of Common Pleas.” Id.

(footnote omitted).     We expressly held that “for purposes of deciding a

motion under Pa.R.C.P. 213.1(a), the court should look to the complaint first

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filed in the court of common pleas, regardless of what may previously

have transpired before a district justice.” Id. (emphasis added).           We

therefore affirmed the transfer of the Franklin County case to the Delaware

County one.

      In the present matter, under the Digimatics decision, anything that

transpired at the magisterial district justice is irrelevant.   Accordingly, the

fact that Mr. Womack sued Mr. Mearing on June 17, 2015, in magisterial

district court is not considered for purposes of applying Pa.R.C.P. 213.1.

Digimatics likewise confirms the fact that the court where a complaint was

filed first is the court with jurisdiction to consider the coordination issue.

Hence, the trial court herein did not have jurisdiction to hear the

consolidation motion and is directed to transfer consideration of the

consolidation issue to the Court of Common Pleas of Philadelphia County at

docket number 2642, June Term, 2015, for resolution.

      Order reversed. Case remanded for proceedings consistent with this

adjudication. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/17


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