Loading...
HomeMy WebLinkAbout2007-1131 Civil RITE AID OF PENNSYLVANIA, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : HARLEYSVILLE MUTUAL : INSURANCE COMPANY AND : CHIP CONSTRUCTION COMPANY, : LLC, : DEFENDANTS : 07-1131 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR COORDINATION OF ACTIONS AND A STAY, AND PRELIMINARY OBJECTIONS OF DEFENDANTS HARLEYSVILLE MUTUAL INSURANCE COMPANY AND CHIP CONSTRUCTION COMPANY TO PLAINTIFF’S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDERS OF COURT Bayley, J., July 16, 2007:-- March 1, 2007 On , plaintiffs Rite Aid of Pennsylvania, Inc. and Rite Aid Corporation, filed a praecipe for a writ of summons that was issued by the Prothonotary against defendants Harleysville Mutual Insurance Company, Huron Insurance Company, Harleysville Preferred Insurance Company, f/k/a Huron Insurance Company March 12, 2007 and Chip Construction Company, LLC. On , plaintiffs had an amended writ of summons issued by the Prothonotary which added Dennis Helverson and March 20, 2007 Deborah Helverson as “indispensable party defendants.” On , plaintiffs filed a complaint seeking a declaratory judgment on an issue of insurance coverage by 07-1131 CIVIL TERM Harleysville Mutual Insurance Company, for damages caused to Dennis Helverson when he fell on February 20, 2004, on an alleged broken sidewalk at a Rite Aid Pharmacy in Philadelphia, Pennsylvania. The broken sidewalk was allegedly caused by defendant Chip Construction Company, LLC. The complaint also contains causes of action for breach of contract and statutory bad faith against Harleysville and a claim for indemnity against Chip Construction Company, LLC. On June 20 and June 27, 2007, the parties by stipulations dismissed Rite Aid Corporation as one of the plaintiffs, Harleysville Preferred Insurance Company, Huron Insurance Company, Dennis Helverson and Deborah Helverson, as defendants. Harleysville Mutual Insurance Company and Chip Construction Company, LLC, filed preliminary objections to the complaint of Rite Aid of Pennsylvania, Inc. March 2, 2007 On , Harleysville Mutual Insurance Company filed a complaint in the Court of Common Pleas of Philadelphia County seeking a declaratory judgment regarding the same coverage issue as in the within case. Rite Aid pursuant to Pa. Rule of Civil Procedure 213.1 has filed in this court a motion for coordination with the lawsuit in Philadelphia and a stay. Harleysville has filed a similar motion for coordination and a stay in the Philadelphia suite. Rite Aid’s coordination motion in this Cumberland County litigation and the preliminary objections of Harleysville and Chip Construction to July 11, 2007 plaintiff’s complaint were briefed and argued on . Pa. Rule of Civil Procedure 213.1, provides: (a) In actions pending in different counties which involve a -2- 07-1131 CIVIL TERM common question of law or fact or which arise from the same transaction may file a or occurrence, any party, with notice to all other parties, 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. The court in which the complaint was first filed may stay (b) the proceedings in any action which is the subject of the motion . . . . (f) The final order disposing of a coordinated action or proceeding shall be certified and sent to the court in which the action was originally commenced to be filed of record. (Emphasis added.) The parties agree that this case and the lawsuit in Philadelphia involve a common question of law and facts and arises from the same transaction and occurrence. While Rite Aid instituted this action by its first writ of summons on March 1, 2007, it did not file a complaint until March 20, 2007, which was eighteen days after Harleysville filed its complaint in the Court of Common Pleas of Philadelphia County. Notwithstanding the clear and unambiguous language in Rule 213.1 that a motion for coordination of actions and a stay may be filed in the court in which the complaint was first filed and that court may stay the proceedings and any action which is the subject of the motion, plaintiff argues that the Rule may be liberally construed to allow this court, where the writ of summons was first issued but not where the first complaint was filed, to coordinate the actions and issue a stay. We disagree. A complaint, unlike a writ of summons, sets forth the causes of action and the facts upon which claims are based. Until complaints are filed a determination cannot be made if multiple suits involve a common question of law or fact and/or arise from the same transaction or occurrence. Therefore, when a complaint has been filed it makes -3- 07-1131 CIVIL TERM sense for Rule 213.1 to proscribe which court can rule on a motion for coordinating multiple actions. That is especially true where coordination motions have been filed in more than one court, which is the case here. It is only the court in which the first VMB Enterprises, Inc. v. complaint is filed that can decide a Rule 213.1 motion. See Beroc, Inc., Digimatics, Inc. v. ABC Advisors, 891 A.2d 749 (Pa. Super. 2006), and Inc., 760 A.2d 390 (Pa. Super. 2000). Accordingly, the motion to coordinate this case with the Philadelphia case will be denied. We will defer deciding the preliminary objections of Harleysville and Chip Construction until the pending coordination motion is decided in the Philadelphia case, and then we will only decide the motions if this case is going to be litigated in this court. ORDER OF COURT IT IS ORDERED: AND NOW, this day of July, 2007, (1) The motion of Rite Aid of Pennsylvania, Inc. for coordination of actions and a IS DENIED. stay, (2) The preliminary objections of defendants, Harleysville Mutual Insurance IS DEFERRED. Company and Chip Construction Company, LLC to plaintiff’s complaint, By the Court, Edgar B. Bayley, J. -4- 07-1131 CIVIL TERM Madeline S. Baio, Esquire James D. Flower, Jr., Esquire For Plaintiff William T. Salzer, Esquire For Harleysville Mutual Insurance Company Frederick T. Lachat, Jr., Esquire For Chip Construction Company, LLC :sal -5- RITE AID OF PENNSYLVANIA, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : HARLEYSVILLE MUTUAL : INSURANCE COMPANY AND : CHIP CONSTRUCTION COMPANY, : LLC, : DEFENDANTS : 07-1131 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR COORDINATION OF ACTIONS AND A STAY, AND PRELIMINARY OBJECTIONS OF DEFENDANTS HARLEYSVILLE MUTUAL INSURANCE COMPANY AND CHIP CONSTRUCTION COMPANY TO PLAINTIFF’S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT IT IS ORDERED: AND NOW, this day of July, 2007, (1) The motion of Rite Aid of Pennsylvania, Inc. for coordination of actions and a IS DENIED. stay, (2) The preliminary objections of defendants, Harleysville Mutual Insurance IS DEFERRED. Company and Chip Construction Company, LLC to plaintiff’s complaint, By the Court, Edgar B. Bayley, J. 07-1131 CIVIL TERM Madeline S. Baio, Esquire James D. Flower, Jr., Esquire For Plaintiff William T. Salzer, Esquire For Harleysville Mutual Insurance Company Frederick T. Lachat, Jr., Esquire For Chip Construction Company, LLC :sal -2-