J-A21035-14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

NOVA REALTY,                             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                       Appellant         :
                                         :
                  v.                     :
                                         :
AMERICAN RISK REDUCTION                  :
SERVICES AND NEMO, II, INC.,             :
                                         :
                       Appellees         :     No. 3426 EDA 2013

               Appeal from the Order Entered October 29, 2013,
             in the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): No. 2523 July Term, 2011

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

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 30, 2014

      Nova Realty appeals from an order granting summary judgment in

favor of American Risk Reduction Services and Nemo, II, Inc. (Appellee).1

We affirm.

      The background underlying this matter can be summarized as follows.

      From 2005 through 2008, Nova Realty procured its errors and
      omissions coverage through [Appellee], an insurance broker.
      Lawrence Eburuoh, a principal/partner of Nova Realty, owned a
      residence which burned with unauthorized residents inside. As a
      result, one unauthorized resident died and [a] fire litigation case
      ensued. A Complaint was filed on August 21, 2007, in which
      [the mother of the deceased] alleged [she] had leased the []
      property from Nova Realty and that Nova Realty had failed to

1
  It is unclear whether American Risk Reduction Services and Nemo, II, Inc.
are separate entities. The parties and the trial court often refer to them as if
they are one entity. For instance, in its brief, Nova Realty describes the


seemingly related entit


* Retired Senior Judge assigned to the Superior Court.
J-A21035-14

     make requested repairs to the circuit breaker on the property.
     Nova Realty was sued in the fire litigation and settled for
     $3,000,000. However, as set out in the Assignment of Rights
     agreement, Mr. Eburuoh, individually and as owner of Nova
     Realty, paid only $50,000.       Plaintiffs in the fire litigation
     acknowledge[d] that they [would] forego their right to collect the
     balance of the Three Million ($3,000,000) Dollar settlement from
     settling defendants individually in consideration of settling

     carriers and other organizations that would have an obligation to
     pay claims arising out of the []lawsuit.

           [A] Declaratory Judgment [A]ction was instituted [on]
     September 30, 2008 by Virginia Surety Company Inc. and
     Diamond State Insurance Company (collectively Insurance
     Companies) against Nova Realty. [I]nsurance [C]ompanies had
     previously disclaimed coverage and a duty to [defend] Nova
     Realty in the fire litigation.   Nova Realty filed a Joinder
     Complaint against [Appellee] herein [on] November 25, 2008
     and an Amended Joinder Complaint [on] January 8, 2009. Nova
     Realty asserted that [Appellee] would be solely and/or jointly
     and severally liable to Nova Realty if it was found that
     [I]nsurance [C]ompanies did not have to provide coverage.
     [Appellee] filed Preliminary Objections requesting dismissal.
     Nova Realty answered asserting [Appellee was] joined not only if
     there was no insurance coverage, but that Nova Realty had in

     negligence. On February 23, 2009, the Honorable Albert W.
     Sheppard, Jr. issued an Order and Opinion sustaining

     joinder claims. Judge Sheppard found that common questions of
     law and fact did not exist between the [D]eclaratory [J]udgment
     [A]ction and the professional liability action to justify joinder
     under Pa.R.C.P. 2252. At no point did Judge Sheppard find Nova

     2010, Judge Sheppard granted [] Insurance Companies
     summary judgment in the Declaratory Judgment [A]ction.

Trial Court Opinion, 11/8/2013, at 1-3 (citations and quotation marks

omitted).




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J-A21035-14

      On July 26, 2011, Nova Realty filed a complaint against Appellee,

claiming that Appellee acted negligently in procuring insurance coverage for

Nova Realty. On March 22, 2012, Appellee filed an answer and new matter.

In its new matter, Appellee asserted, inter alia, that the applicable statute of



      On November 27, 2012, Appellee filed a motion for judgment on the



two year statute of limitations.    The Honorable Annette Rizzo denied the

motion on March 19, 2013.

      On April 1, 2013, Appellee filed a motion for summary judgment.

Appellee presented a number of claims in the motion, including its statute-

of-limitations issue. Nova Realty responded to the motion, and on October

29, 2013, the Honorable Sandra Mazer Moss granted the motion, concluding



filed a notice of appeal.

      In its brief to this Court, Nova Realty asks us to consider the three

questions that follow.

      [1]. Whether the law of the case doctrine prohibited the [trial]

      on statute of limitations grounds when this issue was ruled upon
      in [Nova
      judgment on the pleadings and no new facts or arguments were
      raised in the motion for summary judgment?

      [2].   Whether the doctrine of judicial estoppel prohibited
      [Appellee] from changing [its] previous position that [Nova



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J-A21035-14

     action over the insurance policies defendants obtained for [Nova
     Realty] was decided?


     before it was determined, in a separate declaratory judgment
     action, whether the insurance policies [Appellee] procured for
     [Nova Realty] provided coverage?



omitted) (re-ordered for ease of discussion).

            The standards which govern summary judgment are well
     settled. When a party seeks summary judgment, a court shall
     enter judgment whenever there is no genuine issue of any
     material fact as to a necessary element of the cause of action or
     defense that could be established by additional discovery. A
     motion for summary judgment is based on an evidentiary record
     that entitles the moving party to a judgment as a matter of law.
     In considering the merits of a motion for summary judgment, a
     court views the record in the light most favorable to the non-
     moving party, and all doubts as to the existence of a genuine
     issue of material fact must be resolved against the moving party.
     Finally, the court may grant summary judgment only when the
     right to such a judgment is clear and free from doubt. An
     appellate court may reverse the granting of a motion for
     summary judgment if there has been an error of law or an abuse


Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.

2005) (citations omitted).

     Under the first issue listed above, Nova Realty argues that, because

Appellee presented the same statute-of-limitations claim in its motion for

summary judgment as it did in its motion for judgment on the pleadings

(which Judge Rizzo denied), the coordinate jurisdiction rule precluded Judge



motions differ in kind, as preliminary objections differ from motions for


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judgment on the pleadings, which differ from summary judgment, a judge

ruling on a later motion is not precluded from granting relief although

                                                  Petrongola v. Comcast-

Spectacor, L.P., 789 A.2d 204, 214 (Pa. Super. 2001).         Nova Realty,

                                           Campbell v. Attanasio, 862 A.2d

1282 (Pa. Super 2004), in support of its position that the coordinate

jurisdiction rule prohibited Judge Moss from determining that the statute of

limitations barred its claim.

      In Campbell, the defendants filed motions for summary judgment



trial. A judge denied those motions. As the parties prepared for trial, the

defendants purported to file motions in limine where they raised the same

issue they presented in their motions for summary judgment.      A different

judge granted the motions in limine.

      On appeal, Campbell argued that the second judge violated the

coordinate jurisdiction rule.   A panel of this Court agreed with Campbell.

The panel noted that, for procedural purposes, the order granting the

motions in limine constituted a grant of summary judgment.       Campbell,

862 A.2d at 1285 n.3. The Court ultimately concluded that the second judge




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J-A21035-14

      Thus, in Campbell, the defendants, in effect, were granted summary

judgment on an issue that already had been rejected by way of the denial of

their original motion for summary judgment.     Here, Appellee did raise the

same issue in two different motions; however, the motions differed in kind.

The first motion, denied by Judge Rizzo, was a motion for judgment on the

pleadings.   The second motion, granted by Judge Moss, was a motion for

summary judgment.



kind, as preliminar

judgment, a judge ruling on a later motion is not precluded from granting

                                                                Id. at 1286

(citations omitted); See Garzella v. Borough of Dunmore, 62 A.3d 486,

497                                                                not apply

where the motions are of a different type, and does not bar a judge on



objections or judgment on

(emphasis in original).   Accordingly, Campbell is distinguishable from this

case, and the coordinate jurisdiction rule did not preclude Judge Moss from

determining that the statute of limitations bars No



for judgment on the pleadings, she did so without providing an explanation

for her decision. If Judge Rizzo denied the motion based upon a procedural



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J-A21035-14

defect or some reason other than the merits of the statute-of-limitations

issue, then the coordinate jurisdiction rule clearly did not bar Judge Moss



for summary judgment. Given the circumstances of this case, a lack of an

opinion from Judge Rizzo further factors in favor of and bolsters a conclusion

that the coordinate jurisdiction rule was not implicated or violated in this

case.    See Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168,

1170 (Pa. Super. 1988).2 For these reasons, Nova Realty is not entitled to

relief on this issue.

        Under the second issue listed above, Nova Realty highlights that,

during the preliminary objections stage of the Declaratory Judgment Action,

Appellee argued that Nova Realty should not be permitted to join Appellee to



not be adjudicated until the court declared whether Insurance Companies

were required to provide coverage to Nova Realty.      Nova Realty contends

that, because Appellee took this position in the Declaratory Judgment Action,



negligence claim was ripe for adjudication before the Declaratory Judgment

Action concluded.

2

                                                               Goldey v.
Trustees of University of Pennsylvania, 675 A.2d 264, 267 (Pa. 1996).
The Court, however, has not held that the absence of an opinion in support
of an initial ruling cannot be considered when examining whether a judge
violated the coordinate jurisdiction rule.


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J-A21035-14




judicial estoppel, a party to an action is estopped from assuming a position

inconsistent with his or her assertion in a previous action, if his or her

contention was successfully maintained            Newman Development

Group of Pottstown, LLC v. Genuardi's Family Market, Inc., 2014 WL

4071665, 8 (Pa. Super. 2014) (citation, quotation marks, and footnote

omitted) (emphasis added).

                                                        oin Appellee to the



against it was premature and would not be ripe unless and until it was

declared that Insurance Companies did not have to provide coverage to

Nova Realty.   See, e.g.

Summary Judgment, 6/14/2013, Exhibit O, ¶¶19-25.         However, Appellee



should be dismissed from the Declaratory Judgment Action because Nova



or occurrence as the Declaratory Judgment Action commenced by Insurance

Companies. Id. at ¶¶7-18.



Judgment action and dismissing Appellee from that action, Judge Sheppard



pursuant to Pa.R.C.P. 2252(a)(4), joinder of Appellee to the Declaratory



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J-A21035-14

Judgment Action was improper because that action and the claim against



With New Matter, 3/22/12, Exhibit D.

      Nova Realty acknowledges that Judge Sheppard did not refer to

                                              Appellee from the Declaratory

Judgment    Action.    Nova   Realty,   however,   cites   to   a   non-binding

memorandum and order from the United States District Court for the

                                                           [i]t is not necessary

to show a court                                                        estoppel

to apply. It only must be shown that a party took an opposite position in a



(citing Simon Wrecking Co., Inc. v. AIU Ins. Co., 541 F.Supp.2d 714

(E.D.Pa. 2008)). That is not the law of Pennsylvania.

      The current state of the law in Pennsylvania is that judicial estoppel

only bars a party from assuming a position inconsistent with an assertion it

made in a previous action when that party successfully maintained the

previous inconsistent position.   Here, Judge Sheppard did not address the



Declaratory Judgment Action on the basis of that claim. Thus, Appellee did

not successfully maintain that claim in a previous action, and the doctrine of

judicial estoppel did not preclude Appellee from arguing in this case that




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J-A21035-14




Action concluded.




two-year statute of limitations. Under its third issue, Nova Realty contends

its claim did not become

determined in the Declaratory Judgment Action that the insurance policies

procured by Appellee for Nova Realty did not provide coverage to Nova

Realty with respect to the fire litigation.   Thus, in Nova Re

timely filed its complaint against Appellee on July 26, 2011.        Like the

summary judgment court, we disagree.



                                                                 ance broker,

[Appellee], for failing to follow instructions and obtain requested insurance



Nova Realty insists that it asked Appellee to procure a specific type of

insurance on its behalf and that it subsequently purchased, through

Appellee, an insurance policy that did not meet the coverage requirements it

informed Appellee it wanted.



Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572-73 (Pa. Super.




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J-A21035-14

                           Id. at 572 (citation omitted).    According to 42

Pa.C.S. § 5502, the statute of limitations begins to run when a cause of

action accrues. Regarding a claim of negligence, this Court has explained,



negligent act has been done.       In this Commonwealth, the statute of

limitations for a negligence cause of action is triggered upon the occurrence

                                Bigansky v. Thomas Jefferson University

Hosp., 658 A.2d 423, 426 (Pa. Super. 1995) (citations omitted).

      In the Declaratory Judgment Action, Nova Realty filed its original

joinder complaint against Appellee in November of 2008. In response to the

preliminary objections Appellee filed in that action, Nova Realty argued that

its claim against Appellee was ripe for adjudication.   In fact, Nova Realty

specifically argued that it already had suffered an injury caused by




                                                                         been

injured in that [it has] had to pay sums to defend the declaratory judgment

action. So, even if the court does find a requirement of an actual injury to a



      Nova Realty clearly knew that it had a ripe cause of action against

Appellee in November of 2008.       Nova Realty, however, did not file its

complaint against Appellee until July of 2011, which is beyond the two-year



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J-A21035-14

statute of limitations.   Accordingly, we conclude that Judge Moss correctly

det

       Nova Realty has failed to convince this Court that Judge Moss erred by




       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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