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Home My WebLink About92-3378 Civil ROBERT H. CULLEY et al., : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DAVID ALAN WEIDNER et al., : Defendants : NO. 3378 CIVIL 1991 ROBERT H. CULLEY et al., : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW NORTH MIDDLETON TOWNSHIP, : Defendant : NO. 1746 CIVIL 1992 IN RE: PLAINTIFFS' PETITION FOR CONSOLIDATION BEFORE SHEELY, P.J., HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of January, 1994, upon careful consideration of plaintiffs' petition for consolidation, the petition is GRANTED. BY THE COURT, J.~sley OYo~, Jr. C. Roy Weidner, Jr., Esq. Joseph Hitchings, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant Weidner rc: ROBERT H. CULLEY et al., : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DAVID ALAN WEIDNER et al., : Defendants : NO. 3378 CIVIL 1991 ROBERT H. CULLEY et al., : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : NORTH MIDDLETON TOWNSHIP, : Defendant : NO. 1746 CIVIL 1992 IN RE: PLAINTIFFS' PETITION FOR CONSOLIDATION BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION AND ORDER OF COURT At issue in the present survival and wrongful death matter is plaintiffs' petition to consolidate the above-captioned actions for all purposes, including trial. For the reasons stated in this Opinion, the petition will be granted. Robert H. Culley (plaintiff Culley), an adult individual residing at 375 Longs Gap Road, North Middleton Township, Cumberland County, Pennsylvania, as Administrator of the Estate of Elizabeth Ann Culley (decedent), his wife, initiated a survival action and wrongful death action at No. 3378 Civil 1991 by filing a praecipe for writs of summons on October 1, 1991, on behalf of the estate and on behalf of himself and his minor daughters, Jessica L. Culley and Katrina M. Culley.~ The defendants named in this action were David Alan Weidner (defendant-Weidner), an adult ~ See praecipe for writs of summons, Culley et al. v. Weidner et al., No. 3378 Civil 1991 (hereinafter Culley v. Weidner); Plaintiffs' complaint, Culley v. Weidner, paragraphs 1, 4, 5. No. 3378 Civil 1991 individual with a last known address of 380 Georgetown Road, Gardners, Cumberland County, Pennsylvania,2 and N.L. Minich & Sons, Inc. (defendant-Minich), a Pennsylvania corporation with an office where it regularly conducts business at 730 North College Street, Carlisle, Cumberland County, Pennsylvania.3 In this action, plaintiffs allege that on the morning of July 23, 1990, defendant-Weidner was operating a dump truck owned by defendant-Minich when the dump truck collided with a vehicle operated by decedent.4 As a result of this collision, decedent suffered multiple trauma which resulted in her death several days later on July 27, 1990.5 In their complaint, plaintiffs contend that this collision was the result of the negligent and careless conduct of defendant-Weidner in the operation of his vehicle.6 Additionally, plaintiffs allege that at all relevant times defendant-Weidner was an agent, servant, and employee of defendant- Minich and was acting within the scope of his employment.7 Thus, plaintiffs seek damages against both defendant-Weidner and Plaintiffs' complaint, Culley v. Weidner, paragraph 2. Plaintiffs' complaint, Culley v. Weidner, paragraph 3. Plaintiffs' complaint, Culley v. Weidner, paragraphs 7, 9- Plaintiffs' complaint, Culley v. Weidner, paragraphs 12-16. Plaintiffs' complaint, Culley v. Weidner, paragraph 11. Plaintiffs' complaint, Culley v. Weidner, paragraph 32. 2 No. 3378 Civil 1991 defendant-Minich.8 Plaintiff-Culley initiated a second wrongful death and survival action arising out of the same accident by filing a praecipe for writs of summons on May 11, 1992.9 The defendants named in the second action were North Middleton Township (defendant-North Middleton Township), a municipality of the Commonwealth of Pennsylvania with its office located at 211 North Middleton Road, Carlisle, Cumberland County, Pennsylvania,~° and the Commonwealth of Pennsylvania, Department of Transportation, with its principal office located in the Transportation and Safety Building, Harrisburg, Dauphin County, Pennsylvania; the latter defendant was subsequently dismissed from the action.~ In this complaint, plaintiffs aver that initially they believed the collision which resulted in the death of the decedent was solely the result of the careless and negligent conduct of defendant- ~ See generally plaintiffs' complaint, Culley v. Weidner. 9 See praecipe for writs of summons, Culley et al. v. North Middleton Township et al., 1746 Civil 1992 (hereinafter Culley v. North Middleton Township); plaintiffs' complaint, Culley v. North Middleton Township, paragraphs 9-12. ~0 Plaintiffs' complaint, Culley v. North Middleton Township, paragraph 2. ~ Plaintiffs' complaint, Culley v. North Middleton Township, paragraph 3. Defendant Commonwealth of Pennsylvania, Department of Transportation, was dropped from the action following the granting of an unopposed motion for summary judgment on its behalf. See Order of Court, Culley v. North Middleton Township, February 26, 1993. 3 No. 3378 Civil 1991 Weidner; however, plaintiffs aver that based on subsequent investigation they believe that a dangerous road condition resulting from careless and negligent conduct on the part of defendant-North Middleton Township was also a substantial factor in causing the collision in question.~2 Plaintiffs filed the present petition to consolidate these two actions contending that: (1) defendants Weidner, Minich, and North Middleton Township have participated in or been afforded an opportunity to participate in all discovery conducted in these actions to date;~3 (2) both actions involve common questions of both law and fact, and much, if not all, of the remaining discovery and evidence to be presented at trial in connection with one of the cases will be equally applicable to discovery and trial in the other action;TM and (3) the damages sought in both actions are identical.~s Plaintiffs and defendant-North Middleton Township have agreed to the consolidation of the two cases.~6 Defendants Weidner and Minich, however, are opposing consolidation, alleging that counsel for North Middleton Township has represented that its ~2 Plaintiffs' complaint, Culley v. North Middleton Township, paragraphs 12-14. Plaintiffs' petition for consolidation, paragraph 5. Plaintiffs' petition for consolidation, paragraph 6. Plaintiffs' petition for consolidation, paragraph 7. Plaintiffs' petition for consolidation, paragraph 8. 4 No. 3378 Civil 1991 action with plaintiffs has been settled.~7 Initially, it should be noted that consolidation of actions is provided for in Pennsylvania Rule of Civil Procedure 213 as follows: In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. Pa. R.C.P. 213(a). It is well settled in Pennsylvania that consolidation of actions is to be left to the discretion of the lower court. See Azinger v. Pennsylvania Railroad Co., 262 Pa. 242, 105 A. 87 (1918); Corbett v. Weisbund, 380 Pa. Super. 292, 551 A.2d 1059 (1988), petition for allowance of appeal denied, 524 Pa. 607, 569 A.2d 1367 (1989). In this regard, the question [of consolidation] is one that must necessarily be left to the discretion of the trial judge and where the issues are the same and they arise out of the same transaction, and it does not appear the trial of the cases together would tend to place the objecting party at a disadvantage, or give undue advantage to his adversary, the action of the court in ordering the cases to be tried together will not be reversed. Azinger v. Pennsylvania Railroad Co., 262 Pa. 242, 247, 105 A. 87, ~7 Plaintiffs' petition for consolidation, paragraph 8; brief of Weidner and Minich in opposition to joinder, at 2. 5 No. 3378 Civil 1991 88 (1918). "In a proper case, a court should direct a joint trial or hearing to avoid multiplicity of trials or hearings and to reduce costs." 1 Goodrich Amram 2d §213(a):14, at 204 (1991). Guidance as to the consolidation of the present cases is provided by Donatucci v. Methodist Hospital, 72 D. & C.2d 315 (Philadelphia Co. 1976). In Donatucci, the plaintiff brought a negligence action against a hospital alleging that one of its employees administered an overdose of a drug to a patient, who died 5 days later. Subsequently, the plaintiff also brought a negligence action against the physicians who treated the decedent for the overdose. The court, in allowing a consolidation of the actions, held that, since the issues as to damages were so closely interwoven, permitting separate trials would only invite confusion. Id. at 316. The court noted that the short time sequence of events at issue would make it impossible for separate juries to allocate consistently the damages among the defendants, and that the causal relationship between each defendant's alleged act of negligence and the decedent's injury and death could best be evaluated by a jury trying both matters at the same time. Id. at 317. In the present case, both actions brought by plaintiffs arise out of the same transaction or occurrence -- i.e., the accident which caused the injuries and eventual death of decedent - and involve common questions of fact. Additionally, as in Donatucci, the causal relationship, if any, between each defendant's alleged 6 No. 3378 Civil 1991 act of negligence and decedent's injury and death, and a proper determination as to the apportionment of damages, if any, can best be evaluated by the same jury. With respect to the contention of defendants Weidner and Minich that the action between plaintiff and defendant-North Middleton Township has been settled, the record does not reflect such a settlement and the Court is not in a position to assume that one has occurred. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~?~-~ day of January, 1994, upon careful consideration of plaintiffs' petition for consolidation, the petition is GRANTED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. C. Roy Weidner, Jr., Esq. Joseph Hitchings, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant Weidner