2023-12

HTR Restaurants v. Erie Insurance, Aplt. ( 2023 )

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[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
HTR RESTAURANTS, INC. D/B/A/ SIEBS : No. 21 WAP 2022
PUB, INDIVIDUALLY AND ON BEHALF OF :
A CLASS OF SIMILARLY SITUATED : Appeal from the Order of the
PERSONS, 3382 BABCOCK BOULEVARD, : Superior Court entered August 10,
PITTSBURGH, PA 15327, : 2021 at No. 902 WDA 2020,
: reversing in part and vacating in part
Appellant : the Order of the Court of Common
: Pleas of Allegheny County entered
: July 24, 2020 at No. GD-20-006901,
v. : and remanding.
:
: ARGUED: April 18, 2023
ERIE INSURANCE EXCHANGE, 100 ERIE :
INSURANCE PLACE, ERIE, PA 16530, :
:
Appellee :
JOSEPH TAMBELLINI, INC. D/B/A : No. 22 WAP 2022
JOSEPH TAMBELLINI RESTAURANT, :
5701 BRYANT STREET, PITTSBURGH, PA : Appeal from the Order of the
15206, : Superior Court entered August 10,
: 2021 at No. 903 WDA 2020,
Appellant : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Allegheny County entered
v. : July 24, 2020 at No. GD-20-005137,
: and remanding.
:
ERIE INSURANCE EXCHANGE, 100 ERIE : ARGUED: April 18, 2023
INSURANCE PLACE, ERIE, PA 16530, :
:
Appellee :
HTR RESTAURANTS, INC. D/B/A/ SIEBS : No. 23 WAP 2022
PUB, INDIVIDUALLY AND ON BEHALF OF :
A CLASS OF SIMILARLY SITUATED : Appeal from the Order of the
PERSONS, 3382 BABCOCK BOULEVARD, : Superior Court entered August 10,
PITTSBURGH, PA 15327, : 2021 at No. 902 WDA 2020,
: reversing in part and vacating in part
Appellee : the Order of the Court of Common
: Pleas of Allegheny County entered
: July 24, 2020 at No. GD-20-006901,
v. : and remanding.
:
: ARGUED: April 18, 2023
ERIE INSURANCE EXCHANGE, 100 ERIE :
INSURANCE PLACE, ERIE, PA 16530, :
:
Cross-Appellant :
:
JOSEPH TAMBELLINI, INC. D/B/A : No. 24 WAP 2022
JOSEPH TAMBELLINI RESTAURANT, :
5701 BRYANT STREET, PITTSBURGH, PA : Appeal from the Order of the
15206, : Superior Court entered August 10,
: 2021 at No. 903 WDA 2020,
Appellee : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Allegheny County entered
v. : July 24, 2020 at No. GD-20-005137,
: and remanding.
:
ERIE INSURANCE EXCHANGE, 100 ERIE : ARGUED: April 18, 2023
INSURANCE PLACE, ERIE, PA 16530, :
:
Cross-Appellant :
:
OPINION
JUSTICE WECHT DECIDED: DECEMBER 8, 2023
Prior to and during the COVID-19 pandemic, Erie Insurance Exchange (“Erie”)
insured various businesses across the Commonwealth through policies that protected
against business interruption losses. During the pandemic, federal and state authorities
ordered the closure of certain businesses, including restaurants and other retail
establishments. When these insured businesses filed claims for their losses caused by
COVID-19-related interruptions, Erie uniformly denied them. Several of the insured
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businesses, including Joseph Tambellini, Inc. and HTR Restaurants, Inc., individually and
on behalf of a class of similarly situated plaintiffs (hereafter, “Plaintiffs”), sued Erie in
courts of common pleas across the Commonwealth.
Because of the factual and legal overlap among these claims, and upon Plaintiffs’
motion, the Allegheny County trial court ordered all state-wide litigation to be coordinated
in Allegheny County for all pre-trial and trial purposes under Rule of Civil Procedure 213.1.
Erie appealed to the Superior Court. The Superior Court affirmed in part and reversed in
part. According to the Superior Court, the trial court exceeded the authority of Rule 213.1
by ordering the coordination of similar actions against Erie that had not yet been filed.
The Superior Court further held that Plaintiffs were parties who were empowered by Rule
213.1 to file the motion for coordination. Upon the parties’ cross-appeals, we granted
review of both holdings.
Construing the plain language of Rule 213.1, we agree with the Superior Court that
the trial court lacked authority to coordinate actions that had not yet been filed. We further
hold that Erie waived any argument that Plaintiffs could not seek coordination when it
failed to raise this issue in the trial court. We therefore affirm the Superior Court’s order.
I. Background
On April 17, 2020, and June 17, 2020, respectively, Plaintiffs filed civil actions
against Erie in Allegheny County for breach of contract and seeking declaratory
judgments concerning Erie’s denial of their claims for business interruption losses
incurred as a result of the COVID-19-related shutdowns. Plaintiffs’ actions were the first
of many similar actions that would be filed across the Commonwealth. Shortly thereafter,
Capriccio Parkway, LLC and Capriccio, Inc., individually and on behalf of similarly situated
plaintiffs (the “Philadelphia Plaintiffs”) and Perfect Pots, LLC (the “Lancaster Plaintiff”)
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 3
filed nearly identical actions against Erie in Philadelphia and Lancaster Counties,
respectively.
Over the following weeks and months, many more actions would be filed against
Erie based upon substantially the same facts and legal theories. Because of the common
questions of law and fact presented in these actions, on June 24, 2020, Plaintiffs, joined
by the Philadelphia and Lancaster Plaintiffs, moved for the coordination of actions in
Allegheny County under Rule 213.1 of the Pennsylvania Rules of Civil Procedure.
Rule 213.1 provides for the coordination of actions in different counties as follows:
(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.
(c) In determining whether to order coordination and which location is
appropriate for the coordinated proceedings, the court shall consider,
among other matters:
(1) whether the common question of fact or law is predominating and
significant to the litigation;
(2) the convenience of the parties, witnesses and counsel;
(3) whether coordination will result in unreasonable delay or expense
to a party or otherwise prejudice a party in an action which would be
subject to coordination;
(4) the efficient utilization of judicial facilities and personnel and the
just and efficient conduct of the actions;
(5) the disadvantages of duplicative and inconsistent rulings, orders
or judgments;
(6) the likelihood of settlement of the actions without further litigation
should coordination be denied.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 4
(d) If the court orders that actions shall be coordinated, it may
(1) stay any or all of the proceedings in any action subject to the
order, or
(2) transfer any or all further proceedings in the actions to the court
or courts in which any of the actions is pending, or
(3) make any other appropriate order.
(e) In the order of coordination, the court shall include the manner of giving
notice of the order to all parties in all actions subject thereto and direct that
specified parties pay the costs, if any, of coordination. The court shall also
order that a certified copy of the order of coordination be sent to the courts
in which the actions subject to the order are pending, whereupon those
courts shall take such action as may be appropriate to carry out the
coordination order.
(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.1
In addition, the Comment to Rule 213.1 describes the meaning and intent of the
Rule as follows:
Rule 213.1 addresses a subject formerly not covered by the rules of
civil procedure, the coordination of actions brought in courts of common
pleas of different counties. It provides a procedure to regulate actions which
are brought in different counties but which involve common questions of law
or fact or which arise from the same transaction or occurrence. The basis
for the rule is the same as for Rule 213, i.e., the avoidance of multiple trials
and proceedings in these actions and the resultant economy to both the
parties and the judicial system.
A problem sought to be relieved by this rule is the instance where
actions proceed simultaneously in more than one county and no court will
defer to another and no party is willing to litigate the claim in a county other
than the one of his choosing. This situation leads to duplication of effort by
the courts and the parties and may result in inconsistent rulings and orders.
1 Pa.R.Civ.P. 213.1.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 5
Pennsylvania does not have legislation governing this area. There
are no guidelines similar to those of the federal Manual for Complex
Litigation, nor is there a supervisory body such as the Judicial Panel on
Multidistrict Litigation and none is proposed by the new rule. Rather, the rule
provides a mechanism for the various courts of common pleas to work
together when litigation crosses county lines.
The rule covers five subjects: the request for coordination
(subdivision (a)), the stay of proceedings (subdivision (b)), the criteria for
coordination (subdivision (c)), the order of coordination (subdivision (d)),
and notice of the order (subdivision (e)).
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”. Notice must be given to all parties
in all actions which are to be coordinated. The court in which the first
complaint was filed establishes a forum for the coordination proceedings.
Subdivision (b) provides the court before which a motion is pending
with the necessary authority to stay all actions which eventually may be
subject to the order of coordination.
Subdivision (c) sets forth in the criteria to be considered by the court
in determining whether to enter an order of coordination. Several of the
criteria specified by subdivision [(c)] are similar to the criteria for certification
of a class action under Rule 1708. The similarity is not surprising since the
two provisions have the identical function, as expressed by Rule 1708, of
determining whether the particular procedural device is “a fair and efficient
method of adjudicating the controversy.”
Subdivision (d) is concerned with the order of coordination. The court
is authorized to stay proceedings in any action subject to the order, transfer
an action to another court or “make any other appropriate order.” Under
subdivision (b) the court is empowered to stay actions which are the subject
of the motion for coordination pending the determination of the motion.
Subdivision (d) authorizes the court to further stay actions once the decision
to coordinate has been made.
Subdivision (d)(2) governs the transfer of actions. This type of
transfer is new to Pennsylvania practice. It has long been the practice that
an action may be transferred only under Rule 1006(d) by the court in which
the action is pending to another court for the convenience of the parties and
witnesses or in order to obtain a fair and impartial trial. In subdivision (d)(2),
the court is reaching out to and taking control of actions pending not only in
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 6
the forum county but in other counties of the Commonwealth as well. The
power of the court under Rule 213.1 is statewide.
Subdivision (d)(2) mentions transfer to the “court or courts in which
any of the actions is pending.” This language implies that the order of
coordination need not necessarily provide for only one coordinated action.
Rather, if appropriate, there might be more than one coordinated action.
Actions which are ready for trial might be the subject of one coordinated
action while recently commenced actions might be the subject of a second
coordinated action. Regionalization of certain litigation might be beneficial
to the courts and parties under certain circumstances. However, the
propriety of such procedures would depend on numerous factors, including
the risk of inconsistent and duplicative orders. These coordination
alternatives are only illustrative of the imaginative procedures available
under the rule.
Subdivision (d)(3) provides an opportunity for creative judicial
management. Unlike Section 1407 of the Judicial Code of the United States,

28 U.S.C.A. § 1407

Id. at ¶ 3

.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 8
trial court would consider whether the action should not be part of the coordinated
proceedings.
Following the trial court’s coordination order, several plaintiffs outside of Allegheny
County with similar actions pending against Erie objected to coordination. The trial court
has not yet resolved these objections.
Shortly thereafter, on July 31, 2020, Plaintiffs requested the trial court to appoint
their counsel as lead counsel over the coordinated proceedings with sole authority over
pleadings, motions, discovery, settlement negotiations, settlement, and the allocation of
fees among various attorneys “doing work in the case.”5 The trial court has not yet ruled
on this request.
On August 21, 2020, Erie filed a notice of appeal to the Superior Court from the
coordination order. In its statement of errors complained of on appeal,6 Erie asserted that
coordination under Rule 213.1 was available only for cases that already had been filed,
and therefore were “pending” at the time of the coordination motion.7 According to Erie,
the trial court abused its discretion by ordering the coordination of actions that did not yet
exist.
The trial court issued an opinion in support of its order.8 Relying upon the broad
discretion afforded by Rule 213.1(d)(3) and the comment thereto empowering it to “make
any other appropriate order” in service of coordination,9 the trial court explained that it
would serve the interest in judicial economy to coordinate all similar actions against Erie,
5 Plaintiff’s Proposed Case Management Order, 7/31/2020 at 1-9.
6 See Pa.R.A.P. 1925(b).
7 See Pa.R.Civ.P. 213.1(a), (d)(2), and (e).
8 See Pa.R.A.P. 1925(a).
9 Pa.R.Civ.P. 213.1(d)(3), cmt. ¶ 8.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 9
including those that were forthcoming. The trial court indicated that its order afforded the
parties to all future cases with notice and the opportunity to object, and that it would
consider whether such actions should be part of the coordinated proceeding.
On appeal to the Superior Court, Erie advanced two arguments against
coordination. First, Erie asserted that Rule 213.1 did not entitle Plaintiffs to seek
coordination with actions from outside of Allegheny County. Rather, according to Erie,
only the parties to actions outside of Allegheny County could request to have their case
coordinated with the Allegheny County action. The Superior Court disagreed. Relying
upon the plain language of Rule 213.1(a), the court held that “any party,” including
Plaintiffs, could request coordination of actions filed outside of Allegheny County.10
In its second argument, Erie asserted that the trial court misapplied Rule 213.1 by
granting coordination not only to similar “pending” actions, but also to cases that had not
been filed at the time of the coordination motion. The Superior Court agreed, holding that
the Rule does not permit coordination of cases that are not filed at the time of the motion
for coordination. Because Rule 213.1 repeatedly limited coordination to “pending” actions
in Subsections (a), (d)(2), and (e), the Superior Court held that the intent of the Rule was
to limit coordination to actions that already had been initiated.11 Although the Rule did
not define “pending,” the Superior Court applied its understanding of “pending” in other
contexts as referring to an action that already is in existence.12 Consequently, the
10 HTR Restaurants, Inc. v. Erie Ins. Exch.,

260 A.3d 978

, 985 (Pa. Super. 2021).
11

Id. at 985-86

.
12

Id.

 at 986 (citing Getty v. Getty,

221 A.3d 192

 (Pa. Super. 2019) (defining “pending”
as an undetermined proceeding or an action that has begun but not yet concluded); In re
McCutcheon,

846 A.2d 801

(Pa. Ct. Jud. Disc. 2004) (holding that a case is “pending”
only “after it is filed and is awaiting decision or settlement; after it is begun but is
unfinished”)).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 10
Superior Court held that the coordination order exceeded the authority of Rule 213.1 by
purporting to apply to actions not yet filed.
The court reasoned that Section 213.1(d)(3) vested discretion in the trial court only
to the extent that the Rule permitted coordination; it vested no discretion in the trial court
to exceed the bounds of the Rule. Relying upon Rule 213.1(a), the Superior Court opined
that coordinating cases that had not yet been filed would deprive the parties in those
cases of the opportunity afforded in Rule 213.1(a) to file an answer to the motion for
coordination and, if needed, to be heard at a hearing on the motion before the trial court
orders coordination.
Because the order exceeded what the Rule authorized, the Superior Court
reversed the order to the extent that it applied to cases that had not been filed at the time
of the motion for coordination. The Superior Court remanded to the trial court to resolve
the outstanding objections of plaintiffs opposing coordination.
Erie and Plaintiffs cross-appealed. This Court granted allowance of appeal of two
issues:
On Plaintiffs’ appeal:
Whether the Superior Court erred as a matter of law in finding that
coordination under Pennsylvania Rule of Civil Procedure 213.1 can only be
applied to actions which have been filed at the time coordination is
sought?13
And on Erie’s appeal:
Did the Superior Court endorse an erroneous, unprecedented and
dangerous expansion of Pa.R.Civ.P. 213.1 contrary to its plain language
and which threatens to disrupt this and other litigations pending in multiple
Counties throughout the Commonwealth, in holding that a litigant who is not
a “party” to other cases in “different counties,” has standing to file a Rule
13 HTR Restaurants, Inc. v. Erie Ins. Exch.,

279 A.3d 40

 (Pa. 2022) (per curiam).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 11
213.1 motion to transfer such cases to the County of the nonparty’s
choice?14
An order directing coordination under Rule 213.1 is an interlocutory order that is
appealable as of right.15 Appellate courts review a trial court’s coordination order for an
abuse of discretion.16
When we are called upon to construe a Rule of Civil Procedure, the issue
presented is a question of law and our scope of review is plenary.17 Similar to canons of
statutory construction, “[t]he object of all interpretation and construction of rules is to
ascertain and effectuate the intention of the Supreme Court.”18 To this end, we construe
every rule, if possible, “to give effect to all of its provisions.”19 “When the words of a rule
are clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”20 It is only when the words of a rule are not explicit that we
14     HTR Restaurants, Inc. v. Erie Ins. Exch.,

279 A.3d 38

, 39 (Pa. 2022) (per curiam).
15      Pa.R.A.P. 311(c) (“An appeal may be taken as of right from an order in a civil action
or proceeding changing venue, transferring the matter to another court of coordinate
jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or
analogous principles.”).
16     See Washington v. FedEx Ground Package Sys., Inc.,

995 A.2d 1271

, 1277, (Pa.
Super. 2010); Abrams v. Uchitel,

806 A.2d 1

, 7 (Pa. Super. 2002); Wohlsen/Crow v.
Pettinato Associated Contractors & Engineers, Inc.,

666 A.2d 701

, 703, (Pa. Super.
1995).
17     Zappala v. Brandolini Prop. Mgmt., Inc.,

909 A.2d 1272

, 1280 (Pa. 2006).
18     Pa.R.Civ.P. 127(a).
19

Id.,

 (b).
20

Id.

[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 12
may ascertain the intent by reference to other matters.21 In ascertaining the intent of a
rule, we are guided by a non-exhaustive set of presumptions.22
As we have explained in the context of statutory construction, ambiguity occurs
“when there are at least two reasonable interpretations of the text.”23 When we are
21    Such other matters include:
(1) the occasion and necessity for the rule; (2) the circumstances under
which it was promulgated; (3) the mischief to be remedied; (4) the object to
be attained; (5) the prior practice, if any, including other rules and Acts of
Assembly upon the same or similar subjects; (6) the consequences of a
particular interpretation; (7) the contemporaneous history of the rule; and
(8) the practice followed under the rule.
Pa.R.Civ.P. 127(c).
22    In particular, courts may be guided by the following presumptions, among others:
(a) That the Supreme Court does not intend a result that is absurd,
impossible of execution or unreasonable;
(b) That the Supreme Court intends the entire rule or chapter of rules to be
effective and certain;
(c) That the Supreme Court does not intend to violate the Constitution of the
United States or of this Commonwealth;
(d) That if the Supreme Court has construed the language used in a rule or
statute, the Supreme Court in promulgating a rule on the same subject
matter which employs the same language intends the same construction to
be placed upon such language;
(e) That the Supreme Court intends to favor the public interest as against
any private interest;
(f) That no rule shall be construed to confer a right to trial by jury where such
right does not otherwise exist.
Pa.R.Civ.P. 128.
23    A.S. v. Pennsylvania State Police,

143 A.3d 896

, 906 (Pa. 2016).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 13
construing and giving effect to the text, “we should not interpret statutory words in
isolation, but must read them with reference to the context in which they appear.”24
II. “Pending”
Plaintiffs, as appellants, argue that this Court’s principles of construction support
interpreting Rule 213.1 to allow the coordination of related cases that are not yet filed.
Plaintiffs stress that Rule 213.1(d)(3) affords broad discretion to the trial court to “make
any other appropriate order” and is not limited to “pending” actions. Plaintiffs believe that
the term “pending” in the context of Rule 213.1(a) is ambiguous and may, in some
circumstances, refer to imminent events.25 Although some courts have defined pending
and impending distinctly,26 Plaintiffs distinguish such cases on the basis that they
interpreted statutes containing both terms, which required the courts to give different
meanings to each. With regard to Rule 213.1, however, which uses “pending,” but not
“impending,” Plaintiffs believe that “pending” encompasses cases that are impending or
imminent. Plaintiffs similarly distinguish Rule 213.1 from authorities addressing whether
an action is “pending” or “final.”27 Deciding when an action ceases to be pending and is
instead final or adjudicated, does not, according to Plaintiffs, shed any light on the
meaning of Rule 213.1.
24

Id.

25       See In re Morley,

2020 WL 7414173

 at *2 (Mich. Ct. App. Dec. 17, 2020)
(unpublished) (holding that “pending” could mean “imminent” and “impending”); State v.
Smith,

436 S.W.3d 751

, 763 (Tenn. 2014) (holding that “pending” means “impending”);
Lumpkin v. State,

129 S.W.3d 659

, 663 (Tex. Ct. App. 2004) (holding that “pending”
means that an event is “impending, or about to take place”); St. Peter Herald v. City of St.
Peter,

496 N.W.2d 812

 (Minn. 1993) (providing that “pending civil legal action” meant
litigation in process as well as threatened litigation).
26    See, e.g., McCutcheon,

846 A.2d at 810-11

 (holding that rules governing “pending
and impending cases” must intend to encompass two distinct types of cases).
27    See, e.g., Getty, 221 A.3d at 196; Sch. Dist. of Robinson Twp. v. Houghton,

128 A.2d 58

, 61 (Pa. 1956).
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Given what they perceive to be the inherent ambiguity of Rule 213.1, Plaintiffs urge
the Court to employ the factors enumerated in Rule 127 to glean the intent behind Rule
231.1. Addressing the occasion and necessity of the Rule,28 Plaintiffs argue that the 1990
Explanatory Comment makes clear that the Rule was borne of the need for judicial
economy and efficiency. Plaintiffs believe that the Superior Court’s interpretation of
“pending” conflicts with these salutary aims and would create unmanageable
inefficiencies by allowing potentially scores of “tag-along” cases to proceed separately
from the coordinated proceedings. Such a possibility, in Plaintiff’s view, defeats the
purpose of coordination in the first place.
Addressing the circumstances under which the Rule was promulgated,29 Plaintiffs
emphasize the Explanatory Comment’s indication that the Rule responds to the absence
of any guidelines in Pennsylvania similar to multi-district litigation in the federal courts
(“MDL”) and generally affords trial courts more discretion than their federal counterparts
enjoy.30
Turning to the mischief to be remedied, the object to be attained, and the prior
practices,31 Plaintiffs assert that the Rule was intended to increase efficiency, to avoid
inconsistent verdicts, and to apply across county lines. According to Plaintiffs, the
Superior Court’s interpretation of “pending” will lead to needless duplication, inconsistent
rulings, and the inevitable exclusion of tag-along cases.
28 See Pa.R.Civ.P. 127(c)(1).
29

Id.,

(c)(2).
30 See Pa.R.Civ.P. 231.1, cmt.
31 Pa.R.Civ.P. 127(c)(3), (4), & (5)
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Examining the consequences of the Superior Court’s interpretation,32 Plaintiffs
argue that the Superior Court’s interpretation would frustrate the purpose of the Rule—to
streamline cases capable of resolution in a single court, regardless of when those cases
are filed. By contrast, Plaintiffs believe that their interpretation would advance the Rule’s
purpose. Limiting coordination to actions that already have been filed is, according to
Plaintiffs, contrary to the broad flexibility articulated in the Rule’s 1990 Explanatory
Comment. Relying upon the coordination order entered by the trial court, Plaintiffs assert
that any concerns about a party’s right to “file an answer to the [coordination] motion”
under Rule 213.1(a) is addressed by the trial court’s coordination order, which ensured
that parties to future-filed cases have an opportunity to file objections after the
coordination order has been entered.
Taking the Superior Court’s holding to its logical extreme would, according to
Plaintiffs, require them to wait until the expiration of the relevant statute of limitations to
seek coordination, as only then could they be sure that coordination would cover all similar
cases. Plaintiffs suggest that this would be an absurd result, requiring them to wait
indefinitely to challenge Erie’s conduct and reducing efficiencies. Plaintiffs also assert
that filing serial coordination motions is not a solution under the Superior Court’s
interpretation because being forced to file a new coordination motion every time a tag-
along case is filed would vastly slow down the proceedings, further reducing efficiencies.
Addressing the contemporaneous history of the Rule,33 Plaintiffs rely upon the
federal MDL framework which, they assert, uses “pending” to include future-filed actions.
32

Id.,

 (c)(6).
33

Id.,

 (c)(7).
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Turning to the practice followed under the Rule,34 Plaintiffs argue that future-filed cases
successfully are being coordinated across the Commonwealth.35
Finally, Plaintiffs offer a comparison between Rule 213.1 and the federal MDL
statute, underscoring the similarity of the two frameworks. Where the federal MDL statute
applies to civil actions that are “pending,”36 the federal guidelines implementing that
statute define “pending” to include future-filed cases.37 According to Plaintiffs, this Court
intended to adopt a framework aligned with the federal MDL device, as demonstrated by
the parallel language used in the federal statute and the state Rule.
In response, Erie relies upon the plain language of Rule 213.1 to urge this court to
give effect to the unambiguous term “pending.”38 According to Erie, “pending” plainly
34

Id.,

 (c)(8).
35      See, e.g., Delaware Cty. v. Purdue Pharma. LP, et al., No. 2017-008095 (Del. Ct.
Com. Pl. Sept. 21, 2018); Delaware Cty. v. Purdue Pharma. LP, et al., Order (Del Ct.
Com. Pl. Mar. 26, 2018) (“Defendants shall notify this Court of any further similar actions
filed against Defendants, and those actions will be transferred to this Court and made part
of the proceedings coordinated by this Order.”).
36

28 U.S.C. § 1407

(a) (“When civil actions involving one or more common questions
of fact are pending in different districts, such actions may be transferred to any district for
coordinated or consolidated pretrial proceedings.”).
37 See Rules of Procedure of the United States Judicial Panel on Multidistrict
Litigation (JPML), Sec. 7.1, available at
https://www.jpml.uscourts.gov/sites/jpml/files/Panel%20Rules-Index_%20Copy-
Effective-10-4-2016-Index-Update-10-2-2018.pdf (last viewed June 26, 2023)
(addressing “potential tag-along action[s]”).
38 Erie also argues that Plaintiffs’ ambiguity arguments are waived because they
were not raised in the courts below or in Plaintiffs’ petition for allowance of appeal. See
Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived on
appeal). According to Erie, Plaintiffs’ argument in the lower courts was confined to the
trial court’s exercise of discretion and was not based upon legal ambiguity.
Our construction of Rule 213.1 is de novo. As such, it is our prerogative to use
any interpretive tool that we need. To the extent that Plaintiffs bore any issue preservation
obligations with respect to our interpretation of Rule 213.1, we disagree with Erie that
Plaintiffs waived their rule construction argument. The trial court granted Plaintiffs’
(continued…)
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 17
means, as the Superior Court held, actions that already are in existence at the time the
coordination motion is filed. Erie asserts that this understanding is supported by
caselaw,39 and it distinguishes all of the cases upon which Plaintiffs rely. According to
Erie, Plaintiffs are asking this Court to rewrite the Rule, and to replace the plain meaning
of “pending” with something else.
Erie also asserts that Plaintiffs’ interpretation of “pending” would wreak havoc in
litigation across the Commonwealth, forcing litigants in pending cases to predetermine
the fate of cases yet to be filed by unknown litigants. Responding to Plaintiffs’ federal
MDL comparison, Erie argues that, although the federal MDL statute uses the word
“pending,” it is the Judicial Panel on Multidistrict Litigation (“JPML”), with authorization
from Congress to implement the MDL statute, that created rules that apply coordination
to future-filed tag-along cases. Erie insists that such rules would have been unnecessary
if “pending” as used in the federal MDL statute also meant “impending.”
coordination motion. When Erie appealed to the Superior Court, Plaintiffs were the
appellees. As such, Plaintiffs had no issue preservation obligations in that court. See
Discovery Charter Sch. v. Sch. Dist. of Phila.,

166 A.3d 304

, 314 n.10 (Pa. 2017) (holding
that a party had no obligation to preserve issues for appeal to this Court when they were
the appellees in the Commonwealth Court); Sullivan v. Dept. of Transp.,

708 A.2d 481

,
483 (Pa. 1998)) (”the general rule that issues not raised in the lower court may not be
raised on appeal applies only to appellants, not to appellees”).
Only when Erie relied upon its view of “pending” in its argument to the Superior
Court did Plaintiffs have an opportunity to respond to this argument. They did so. When
the Superior Court ruled against them, Plaintiffs sought allowance of appeal by arguing
that the Superior Court erred as a matter of law in finding that coordination applied only
to actions that are already filed. Erie responded to this argument, and we granted review
to decide whether the Superior Court erred as a matter of law in its interpretation of Rule
213.1. Accordingly, Erie’s waiver argument is baseless.
39      See, e.g., Getty, 221 A.2d at 196 (holding that “pending” means actions that have
been filed but not resolved); Straw v. Fair,

187 A.3d 966

, 1004 (Pa. Super. 2018)
(Strassburger, J., concurring and dissenting) (distinguishing the pending case from a new
action); McCutcheon,

846 A.2d at 810

(holding that a case is “pending” only “after it is
filed and is awaiting decision or settlement; after it is begun but is unfinished”).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 18
Erie next disputes Plaintiffs’ argument that Rule 213.1(d)(3) vested discretion in
the trial court to include future-filed cases, asserting that the trial court’s discretion is
cabined by the plain terms of Rule 213.1, which restricts coordination to pending actions.
More broadly examining whether the coordination order in this case is consistent with the
salutary aim of Rule 213.1 to enhance efficiency, Erie argues that the order does quite
the opposite. As support, Erie asserts that coordinated actions move through the courts
more slowly than individual actions, and that the plaintiffs in the Delaware County
coordinated litigation have sought to have their cases un-coordinated because of the
inefficiencies they are experiencing. According to Erie, the policy behind affording
authority in the trial court of the first filed action to deprive courts across the
Commonwealth of jurisdiction over a large number of complex cases is suspect, as
individual state judges lack the perspective and experience inherent in federal MDL.
Erie also highlights due process concerns, asserting that Plaintiffs seek to usurp
control of all similar cases from all plaintiffs, as demonstrated by their sweeping,
unresolved request in the trial court to be appointed lead counsel of all coordinated
actions. Erie worries that this power-grab will deprive plaintiffs not only of their choice of
forum, but also of their choice of counsel, and will increase the costs and time associated
with resolving claims. Reflecting concern for itself, Erie argues that the trial court’s
coordination order impairs its own due process rights to separate trials to focus upon
individualized claims.
In their reply brief, Plaintiffs maintain that Rule 213.1 protects the due process
rights of all litigants, including plaintiffs in future-filed cases and defendants. In particular,
Plaintiffs note that the coordination order affords every litigant in every related action the
opportunity to object to coordination before their case is transferred. Nor does the
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 19
coordination order preclude Erie from raising any individualized facts or issues in each
particular case.
Our analysis of the parties’ arguments begins with a review of the provisions of
Rule 213.1, particularly with respect to its limitation in Subsection (a) to “actions pending.”
There presently is no dispute before this Court about whether various actions involve
common questions of law or fact or arise from the same transaction or occurrence. Nor
is there any dispute that Allegheny County is the court in which a complaint was first filed.
Omitting these undisputed provisions, Rule 213.1(a) provides: “In actions pending in
different counties . . . , any party, with notice to all other parties, may file a motion
requesting the [Allegheny County trial court] to order coordination of the actions. Any
party may file an answer to the motion and the court may hold a hearing.”40 Construing
and giving effect to Rule 213.1(a)’s use of “pending,” we read the text with reference to
the context in which it appears.41 In our view, for several reasons, this provision plainly
limits coordination to cases that already have been filed.
First, there is a plain temporal limitation upon coordination that is apparent in the
use of the phrase “actions pending” in Rule 213.1(a). “Pending,” as an adjective, modifies
the noun “action.” Only “actions” that presently are “pending” can be the subject of a
coordination motion. An action in this context is “a civil or judicial proceeding.”42 Actions
40 Pa.R.Civ.P. 213.1(a).
41 See A.S., 143 A.3d at 906.
42 BLACK’S LAW DICTIONARY (11th ed. 2019). As this definition continues,
An action has been defined to be an ordinary proceeding in a court of
justice, by which one party prosecutes another party for the enforcement or
protection of a right, the redress or prevention of a wrong, or the punishment
of a public offense. But in some sense this definition is equally applicable to
special proceedings. More accurately, it is defined to be any judicial
(continued…)
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 20
generally are understood to commence with the filing of a complaint or a praecipe for a
writ of summons.43 Before a case is commenced through some sort of filing, it is not an
action. It is only potential litigation, anticipated by the parties and their attorneys to
become an action. An “action,” therefore, is a lawsuit that already has commenced.
Coupling “pending” with “action” illustrates that Rule 213.1 subjects to coordination only
those lawsuits that already have commenced. There is no action pending if no action
exists.
Second, this analysis is buttressed by the portion of Rule 213.1(a) that affords to
any party the right to file an answer to the coordination motion. If we read “actions
pending” to include only lawsuits that have commenced, the Rule sequentially affords any
party the right to file a coordination motion, any party the right to answer the motion, and
the trial court the opportunity to hold a hearing. After these three events occur, Rule
213.1(d) affords the trial court the discretion to stay the proceedings and to enter the
coordination order. The coordination order is entered only after interested parties have
had the opportunity to file answers to the coordination motion and the trial court has had
the opportunity to hold a hearing. The right to file an answer to the motion is meaningful
only if the court considers the answer before entering the order.
proceeding, which, if conducted to a determination, will result in a judgment
or decree. The action is said to terminate at judgment.
Id.
43 The Rules of Civil Procedure define “action” as “a civil action brought in or
appealed to any court which is subject to these rules.” Pa.R.Civ.P. 1001. An action is
commenced by the filing of a praecipe for a writ of summons or a complaint. Pa.R.Civ.P.
1007. In addition, the Judicial Code defines action as “any action at law or in equity,” 42
Pa.C.S. § 102, and provides that “a matter is commenced” for purposes of the statute of
limitations when “a document embodying the matter” is filed in a court or magisterial
district, 42 Pa.C.S. § 5503.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 21
Were we to follow Plaintiffs’ suggestion and read “actions pending” to include
cases that have not yet been filed, then the right to file an answer before entry of a
coordination order becomes meaningless. Under Plaintiffs’ construction, a party would
file the coordination motion (applicable to all pending and imminent actions), the trial court
would (in its discretion) hold a hearing and enter the coordination order, and, when a new
case is filed, the party to the new case would file an answer to the coordination motion
that the trial court already had granted. Construing a rule to afford a party the opportunity
to answer a fait accompli not only offends the sequence of events contemplated by Rule
213.1(a) and deprives future litigants of their right to be heard before the trial court enters
a coordination order, but also would make a mockery of motions practice. The trial court’s
authorization of objections to coordination after the order has been entered does not
satisfy the Rule’s requirement that parties be afforded the right to file an answer before
the order is entered. We listen attentively to what the letter of the Rule actually requires.
Third, this reading of Rule 213.1(a) is consistent with an understanding of
“pending” as encompassing something that has begun but not yet ended. By modifying
“action,” the word “pending” limits those actions that may be subject to a particular
coordination order. Before (or after) a case is pending, it is not a candidate for
coordination. We discern no ambiguity in this word, as the common understanding of
“pending” is that it refers to something that is ongoing, that has started but not concluded,
or something that is awaiting consideration. As Black’s Law Dictionary explains, pending
means “[r]emaining undecided; awaiting decision <a pending case>. 2. Parliamentary
law. (Of a motion) under consideration; moved by a member and stated by the chair as a
question for the meeting’s consideration.”44 A prior edition of Black’s Law Dictionary
defined “pending” as “begun, but not yet completed; during; before the conclusion of; prior
44 BLACK’S LAW DICTIONARY (11th ed. 2019).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 22
to the completion of; unsettled; undetermined; in process of settlement or adjustment.
Thus, an action or suit is ‘pending’ from its inception until the rendition of final judgment.”45
Similarly, Webster’s Dictionary defines “pending” as “remaining undecided; awaiting
decision or settlement; unfinished.”46
These dictionary definitions share an understanding of “pending” as being
temporally limited to things that have begun but not yet ended. In arguing that “pending”
may also mean impending, or imminent, Plaintiffs advocate for imprecision. They would
turn a commonly understood word into a contranym. For example, if “pending” and
“impending” can both be said to apply to things that are about to occur, then we would
lose the particular meaning embodied in the word “impending.” As Bryan Garner explains
in Modern American Usage, “pending” and “impending” denote very different things:
What is pending is awaiting an outcome—e.g.: “Another precedent has
resulted from a pending suit by the parents of an American-born teenager
killed in a terrorist attack in Israel.” What is impending is imminent (in the
literal sense of the word, “hanging over one’s head”) and harmful—e.g.:
“The phrase ‘Back to School’ strikes a chord of impending doom for most
students.” Yet it is not uncommon for writers to use impending for pending,
maybe just because they think the extra syllable adds “gravitas.” Whatever
the reason, the slipshod extension threatens to deprive us of a useful word,
as impending loses its connotations of danger or evil.47
To retain the distinction between “pending” and “impending,” we reject Plaintiffs’ invitation
to collapse the two contrary meanings.
We acknowledge that there is some dictionary support for Plaintiffs’ argument.
Merriam-Webster’s Collegiate Dictionary defines “pending” as “1: not yet decided: being
45 BLACK’S LAW DICTIONARY (5th ed. 1979).
46 RANDOM HOUSE WEBSTER’S UNABRIDGED DICTIONARY (2d ed. 2001).
47 Bryan Garner, GARNER’S MODERN AMERICAN USAGE, 596 (2003) (capitalization
modified).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 23
in continuance; ‘the case is still pending.’ 2: IMMINENT, IMPENDING.”48 Similarly, the
Court of Judicial Discipline acknowledged (but did not follow) the American Heritage
Dictionary, which lists “impending” as one of the meanings of “pending.” 49 In our view,
dictionary definitions that collapse the meaning of “pending” into “impending” confuse
rather than clarify the distinct meaning of each word. These dictionaries reflect the
reckless extension that threatens to deprive us of the word “impending” and its ominous
connotations.
Finally, Rule 213.1 thrice uses the word “pending” to describe the actions to which
the Rule pertains. If the trial court grants the coordination motion, then Rule 213.1(d)(2)
authorizes the court to “transfer any or all further proceedings in the actions to the court
or courts in which any of the actions is pending.” This grant of power affords the trial court
that is coordinating the actions the discretion to coordinate in any court where an action
is pending. This provision would make no sense if, as Plaintiffs argue, it means that the
trial court may order coordination in a court where an action has not yet been filed but is
imminent.
Similarly, Rule 213.1(e) requires the court to send copies of the coordination order
“to the courts in which the actions subject to the order are pending.” If, as Plaintiffs argue,
an action can be said to be pending before it is filed, then there is no limitation on the
court’s obligation under this subsection. The court would be required to send copies of
its coordination order to all courts of common pleas across the Commonwealth, as every
court has the potential to be a court in which a similar action will someday be filed. We
48 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, https://www.merriam-
webster.com/dictionary/pending (last viewed June 28, 2023) (capitalization in original).
49 See McCutcheon,

846 A.2d at

811 (citing NEW COLLEGE EDITION, THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1979).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 24
reject such a nonsensical construction. “Pending” and “actions” as used in Subsection
(e) plainly limit and define which courts are entitled to copies of the coordination order.
The 1990 Explanatory Comment further describes the court entertaining the
coordination motion as the “court before which the motion is pending,” and affords that
court the authority to stay all actions that may be subject to coordination.50 The only court
to which this comment could apply is the court of the first-filed action that is presently
entertaining a coordination motion. Reading “pending” in this comment to mean
imminent, as Plaintiffs suggest, the Rule would afford the court in which a coordination
motion has not yet been filed (but is imminent) the authority to stay all actions that may
be subject to coordination, based upon speculation about future filings. Not only is this
nonsensical, but it would also vastly expand the authority of the trial court. Engaging in
“interpretive jiggery pokery” by replacing “pending” with “pending or impending”
throughout the Rule and its comment would render Rule 213.1 incoherent.51
To be ambiguous, “pending” as used in Rule 213.1(a) would have to bear two
reasonable interpretations. It does not. The only reasonable construction of “pending” in
Rule 213.1(a) is that the word refers only to cases that already have been filed. The fact
that some courts in other jurisdictions have construed “pending” in other contexts to
include “impending” does not make Plaintiffs’ interpretation of Rule 213.1(a) reasonable,
and therefore does not inject ambiguity into the plain meaning of Rule 213.1.
As support for their argument, Plaintiffs primarily rely upon In re Morely, an
unpublished appellate court decision from Michigan.52 The Morely court was reviewing a
statute that identified a particular government agency as having an interest in a petition
50 Pa.R.Civ.P. 213.1, cmt.
51 See King v. Burwell,

576 U.S. 473

, 506 (2015) (Scalia, J., dissenting)
52

2020 WL 7414173

.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 25
for the appointment of a conservator when an application for benefits was “pending”
before that agency.53 All parties agreed that no application had yet been filed, but that it
soon would be. Relying upon the definition of “pending” in Merriam-Webster’s Collegiate
Dictionary, which, as described above, includes “imminent” and “impending,” the
appellate court held that the word may encompass fillings that are imminent.54 In addition
to not binding this Court, Morely is not persuasive, for the same reason that we view the
plain meaning of pending as not including impending or imminent.
Nor does McCutcheon suggest that “pending” is ambiguous.55 There, the Court of
Judicial Discipline considered Rule 4(D) of the Rules Governing Standards of Conduct of
Magisterial District Judges. Rule 4(D) provides in part that “[a] district justice shall . . .
neither initiate nor consider ex parte or other communications concerning a pending or
impending proceeding.”56 The court examined Random House Dictionary’s definition of
pending to hold that “a case is ‘pending’ under Rule 4(D) after it is filed and is awaiting
decision or settlement; after it is begun but is unfinished.”57 Because there was no
pending proceeding, the court proceeded to examine the meaning of impending as the
other adjective contained in the rule. The court recognized that Random House
Dictionary defined “impending” as something that is imminent, or about to happen.
Although the court held that the drafters of the rule “must have thought the words mean
something different, otherwise they would not have used both words,”58 it observed that
53

Id.,

 at *2 (citing MCR 5.125(C)(25)).
54

Id.

 (citing Merriam-Webster’s Collegiate Dictionary (11th ed.), at 915).
55     McCutcheon,

846 A.2d at 811

.
56     Pa.R.St.Ct.M.D.J. 4(D).
57     McCutcheon,

846 A.2d at

810–11.
58

Id. at 811

.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 26
the American Heritage Dictionary listed “impending” as a definition of “pending.”
Examining the facts of the case, the court held that the relevant conduct occurred in the
absence of either a pending or impending proceeding and, therefore, the respondent did
not run afoul of Rule 4(D).59 Although the court adverted to the American Heritage
Dictionary definition of “pending,” it found no ambiguity in the use of that term in Rule 4(D)
or in the distinct meaning it must carry in contrast to “impending.”
In St. Peter Herald v. City of St. Peter, a Minnesota appellate court addressed a
statute designating certain data as nonpublic if it were collected by a political subdivision
as part of an active investigation “for the purpose of the commencement or defense of a
pending civil legal action” or “retained in anticipation of a pending civil legal action.”60
After reviewing various dictionary definitions of pending, the appellate court returned to
the statute’s use of “anticipation” to hold that, although it may be impossible to anticipate
something that is already in progress, it was possible to anticipate something that had not
yet started but was threatened. “Because one cannot anticipate a civil legal action once
it has already commenced, the legislature must have intended the broader construction
of “pending” (including threatened civil legal action) to apply.”61 Thus, it was only in
conjunction with “anticipated” that the court read “pending” to apply to something that had
not yet begun. On appeal, the Minnesota Supreme Court held that it was not the word
“pending” that determined the classification of data as public or nonpublic, but whether
the data was collected by a political subdivision. As such, the Minnesota Supreme Court
59

Id.

 (“It is our conclusion that the Bartoe case was neither pending nor impending
at the time of Respondent’s conversations with her grandson and, for that reason, the
Board has not established a violation of Rule 4(D).”).
60

481 N.W.2d 405

, 407 (Minn. Ct. App. 1992) (citing Minn.Stat. § 13.39, subds. 1, 2
(1990)), rev’d by St. Peter Herald v. City of St. Peter,

496 N.W. 812

 (Minn. 1993).
61

Id. at 407

.
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 27
deemed it unnecessary to construe “pending” at all. Neither case sheds light on the plain
meaning of “pending” in Rule 213.1.
Cases that construe statutory provisions using “pending” and “in progress”
together are not helpful. Where the legislature has used two different words, rules of
statutory construction require courts to give those words distinct meanings.62 When the
legislature has used both words, courts unsurprisingly have accorded them different
meanings in order to avoid redundancy. In State v. Smith, for example, a Tennessee
court considered a statute criminalizing the destruction, tampering, or fabrication of
evidence by a person “knowing that an investigation or official proceeding is pending or
in progress.”63 Engaging in statutory construction of “pending” and “in progress,” and
examining decisions from other courts that had performed the same analysis, the court
reasoned that the legislature intended to afford “pending” and “in progress” different
meanings. Therefore, the court held that “pending” meant “impending.”64
In contrast, the Superior Court in Getty was called upon to decide whether a case
was pending or final to determine whether a statute that applied to “all proceedings
62 As we have explained, “[a] statute must be construed if possible to give effect to
all of its provisions. It is presumed that every word, sentence or provision of a statute is
intended for some purpose and accordingly must be given effect.” Commonwealth v.
Lobiondo,

462 A.2d 662

, 664 (Pa. 1983) (cleaned up). “Thus, when the legislature uses
two different words, we must . . . presume that it must have meant for the words to have
separate meanings.” Commonwealth v. Elliott,

50 A.3d 1284

, 1290 (Pa. 2012) (cleaned
up).
63

436 S.W.3d at 763

.
64      Id.; see also United States v. Hill,

776 Fed. Appx. 908

, 909 (6th Cir. 2019)
(“Pending here means impending, or about to take place, since it must have a different
meaning than ‘in progress’”.); Lumpkin v. State,

129 S.W.3d 659

, 663 (Tex. App. 2004)
(holding that, where a statute provided for the offense of tampering with evidence knowing
that “an investigation or official proceeding is pending or in progress,” the word “pending”
meant “impending, about to take place” because it had to mean something other than “in
progress”).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 28
pending” on or after a particular date was applicable.65 Holding that a case on appeal
was pending before final disposition, and that the statute therefore applied, the court
explained:
Pendency, in practice, has been said to be ‘the state of an undetermined
proceeding.’ Black’s Law Dictionary, 3rd Ed., p. 1345, defines the term as
‘the state of an action, etc., after it has been begun, and before the final
disposition of it.’ Instantly, there is no question that this case was on appeal
to this Court at the time subsection 3501(c) went into effect. Thus, this case
meets the aforementioned definition of pending, as no final disposition had
yet occurred.66
Consistent with our holding today, Getty held that “pending” refers to something that has
begun but not yet concluded.
Accepting Plaintiffs’ argument would require us to rewrite Rule 213.1 and hold that
it does not mean what it says. Plaintiffs’ argument for ambiguity depends upon viewing
the term “pending” in isolation and upon relying on court decisions that are non-binding,
distinguishable, or simply not persuasive. When read in conjunction with the rest of Rule
213.1, the intent is plain. Accordingly, we reject Plaintiff’s argument that Rule 213.1(d)
vested discretion in the trial court to coordinate future-filed cases. The discretion afforded
by Rule 213.1(d) is limited by the plain terms of Rule 213.1(a) to actions that are pending
when the coordination motion is filed. The trial court’s order exceeded the scope of Rule
213.1(a).
65 221 A.3d at 196.
66 Id.; see also Houghton, 128 A.2d at 60-61 (holding that, where intervention was
appropriate “during the pendency of an action,” a petition to intervene filed six weeks after
the case had been disposed of was too late); Straw,

187 A.3d at 1004

 (Strassburger, J.,
concurring and dissenting) (distinguishing between a final order and an interlocutory
appeal by noting that a final order has resolved all claims while an interlocutory appeal
occurs when claims remain pending in the lower court).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 29
Given our conclusion that the meaning of Rule 213.1 is plain, we reject Plaintiffs’
invitation to delve into the canons of rule construction upon which they heavily rely.
Because Rule 127(c) aids our construction only when “the words of the rule are not
explicit,” it is not helpful in this context. Nor is it appropriate to examine the federal court’s
MDL device to ascertain what language the federal rules employ or what meaning the
JPML affords those rules. Our interpretation today is based solely on the plain language
of Rule 213.1, not upon a comparison with federal law or what may be the most efficient
manner of coordination were we deciding this case in a vacuum.
We recognize, however, Plaintiffs’ argument that limiting coordination to pending
actions is in tension with the intent of the Rule as explained in its Comment: “the
avoidance of multiple trials and proceedings” in actions involving common questions of
law or fact and the “resultant economy to both the parties and the judicial system.”67
Defending against the same claims in numerous future-filed cases that could not be
captured by the initial coordination order may be duplicative, judicially inefficient, and
expensive, and may risk inconsistent rulings.
There is nothing in Rule 213.1 that precludes multiple or serial coordination
motions. Following the entry of a coordination order and the filing of more actions
involving common questions of law or fact, the Rule affords “any party” the opportunity to
move to have these later-filed tag-along actions coordinated by the Allegheny County trial
court as the first-filed court.68
As a point of comparison, federal MDL is a tool to coordinate related cases across
different federal courts in service of efficiency. The MDL device was created by statute.
The JMPL, which consists of a panel of seven federal judges chosen by the Chief Justice
67     Pa.R.Civ.P. 213.1, cmt.
68

Id.,

 (a).
[J-13A-2023, J-13B-2023, J-13C-2023 and J-13D-2023] - 30
of the United States Supreme Court, is authorized to consolidate certain cases and to
transfer them to a single judge chosen by the panel for pretrial proceedings.69 Although
the MDL statute limits coordination to pending actions,70 the JPML rules permit the
conditional coordination of tag-along actions.71 If a party objects, the clerk of the JPML
may vacate the order.72
About half of the states have created some sort of coordination device with a wide
range of variation across the country.73 In doing so, the states have had to choose among
different alternatives and to make various decisions to structure coordination at the state
level. For example, states could choose to model the institutional structure of the MDL
device by vesting authority in a centralized institution to consolidate cases, or, like
Pennsylvania, to create a peer model in which trial judges with pending cases are
authorized to consolidate cases from other courts across the state.74 There are variations
within the peer model as well, with some states (like Pennsylvania) vesting authority only
in the judge in the first-filed action, and others vesting authority in any judge with a
pending case or the concurrence of the transferor and transferee judges. 75 States have
also had to make decisions about the standards for coordination and the extent of
69

28 U.S.C. § 1407

(a), (d).
70

Id.,

 § 1407(a).
71     Rules of Procedure of the United States JPML 7.1 (“Upon learning of the pendency
of a potential tag-along action, the Clerk of the Panel may enter a conditional order
transferring that action to the previously designated transferee district court for the
reasons expressed in the Panel’s previous opinions and orders.”).
72     Id.
73    See generally Zachary D. Clopton & D. Theodore Rave, MDL in the States, 115
NW. U. L. REV. 1649 (2021).
74     Id. at 1654.
75     Id. at 1160, 1667-68.
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coordination. For example, the federal MDL device permits coordination only for pre-trial
proceedings. There is no such limitation in Rule 213.1. As the Rule’s Comment explains:
Unlike Section 1407 of the Judicial Code of the United States,

28 U.S.C.A. § 1407

, which provides for the transfer of actions “for coordinated or
consolidated pretrial proceedings”, the purposes for which actions may be
coordinated are not specified in Rule 213.1. The court may “make any other
appropriate order.” For instance, actions may be consolidated generally, for
pretrial proceedings, for determination of specified issues of law or fact or
for trial. The order is limited only by its function of providing a fair and
efficient method of adjudicating the controversy.76
States vary as well in their treatment of tag-along cases. For example:
The transferee judge, upon a motion, can consolidate tag-alongs in
California, Oregon, Virginia, and (with advice and consent of the panel)
West Virginia. In Colorado, the court clerk can effect the transfer. In New
York, unopposed tag-along motions are granted automatically, while
opposed motions go to the panel. In New Jersey, the supreme court's initial
order can specify when tag-alongs may be transferred automatically. And
in Texas, tag-alongs are transferred upon a notice of filing, but then any
party can ask the transferee court to remand the action. That decision is
appealable to the panel.77
Other decision points in crafting state coordination devices include the appointment of
lead counsel, remand to the transferor court, and appellate review.78
Whether one state’s system is better than another’s, or better than the federal MDL
device, is a normative evaluation that is beyond the scope of this appeal. The variation
among states suggests the many alternatives and decisions that are available to each
state embarking upon a system of coordination. When Rule 213.1 was drafted, it
intentionally declined to impose a system similar to that of the federal MDL:
76 Pa.R.C.P. 213.1, cmt.
77 Clopton & Rave, supra n. 74 at 1672.
78 Id. at 1667-75.
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Pennsylvania does not have legislation governing this area. There are no
guidelines similar to those of the federal Manual for Complex Litigation, nor
is there a supervisory body such as the Judicial Panel on Multidistrict
Litigation and none is proposed by the new rule. Rather, the rule provides
a mechanism for the various courts of common pleas to work together when
litigation crosses county lines.79
There may be advantages to coordinating tag-along cases, such as avoiding
duplicative discovery and inconsistent verdicts. These advantages are not captured by
limiting coordination to “pending actions,” or by mandating that parties to actions that are
sought to be coordinated have the opportunity to file an answer to the coordination motion
(before the trial court directs coordination). Whether the limitation of coordination to
pending actions is a feature or a bug of the design of Rule 213.1 is beyond the scope of
this appeal. We leave it to the Civil Procedural Rules Committee to consider the
implications of the arguments raised in this case and to determine whether to recommend
that we consider any revisions to Rule 213.1.
III. “Any party”
In the second issue encompassed within our grant of allocatur, Erie argues that
“any party” under Rule 213.1(a) means a party who wants their subsequently-filed case
to be coordinated with the first-filed case. Erie contends that
Rule 213.1 has never been read to permit nonparties to file a motion to
coordinate and transfer venue for cases in other county courts to which the
movant is not a party, where none of the actual parties to such other cases
have moved to transfer their case (and where, as here, in many instances,
all the parties in cases to be transferred to venues across the state opposed
having their cases transferred to an inconvenient forum).80
79 Pa.R.Civ.P. 213.1, cmt ¶ 3.
80 Erie’s Brief at 31.
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Plaintiffs first respond that Erie did not dispute Plaintiffs’ ability to seek coordination
in the trial court. Rather, according to Plaintiffs, it was only on appeal that Erie advanced
the present argument that Plaintiffs are not “any party” under Rule 213.1(a) and therefore
could not move for coordination. As such, Plaintiffs argue that Erie waived this issue. On
the merits, Plaintiffs observe that they are the parties to the first business interruption
case against Erie, which they brought in Allegheny County, the “court in which a complaint
was first filed.”81 Plaintiffs assert that the plain language of Rule 213.1(a) authorizes “any
party” to file a motion in Allegheny County requesting coordination. As a party to the
Allegheny County action, Plaintiffs believe they qualify as “any party” under Rule 213.1(a).
Upon our review of the record, it is apparent that Plaintiffs are correct that Erie
never challenged Plaintiffs’ right to seek coordination nor otherwise argued about the
meaning of “any party” in Rule 213.1 in the trial court. Erie did not raise this argument in
its Brief in Opposition to Coordination, in its motion for reconsideration, or in its Rule
1925(b) Statement of Matters Complained of on Appeal.82 In neither the trial court’s
coordination order nor its Rule 1925(a) opinion did the trial court consider whether
Plaintiffs could seek coordination in the first place. This was no oversight on the part of
the trial court, because Erie argued for the first time on appeal to the Superior Court that
the Rule did not permit Plaintiffs to seek coordination. Although Erie filed a reply brief in
this Court, it has not addressed Plaintiffs’ waiver argument.
If Erie believed that Plaintiffs had no authority under Rule 213.1(a) to seek
coordination, it could have brought this argument to the trial court. If its argument had
been successful, such a ruling would have mooted its other objections to coordination.
Instead, after Plaintiffs sought coordination on June 24, 2020, Erie objected to
81 Pa.R.Civ.P. 213.1(a).
82 Pa.R.A.P. 1925(b).
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coordination for two reasons: (1) not all parties had received notice of the coordination
motion, and (2) coordination was not warranted under the discretion afforded in Rule
213.1(c).83 Erie did not base its objection on the argument that Plaintiffs could not seek
coordination at all.
Following the trial court’s July 23, 2020 coordination order, Erie moved for
reconsideration on the same grounds contained in its opposition to coordination, sought
clarification of the coordination order, and objected to a proposed case management
order.84 Again, Erie did not argue that Plaintiffs were not “any party” under Rule 213.1(a).
In its Rule 1925(b) Statement of Matters Complained of on Appeal, Erie once again made
no argument that Plaintiffs were not parties who could seek coordination under Rule
213.1(a).
Issues not raised in the trial court are waived and cannot be raised for the first time
on appeal.85 Issues that are not included in the Rule 1925(b) statement are waived.86 If
Erie believed that Plaintiffs were not “parties” who could file a motion for coordination
under Rule 213.1(a), it was incumbent upon Erie to raise this argument with the trial court
and in its Rule 1925(b) statement. It did not do so. We therefore find that Erie waived
this issue.
We agree with the Superior Court that Rule 213.1 does not permit the coordination
of actions that have not been filed at the time of the coordination motion. We further hold
that Erie waived its argument that Plaintiffs were not entitled to seek coordination in the
first place. The order of the Superior Court is affirmed.
83 See Erie’s Brief in Opposition to Plaintiff’s Motion to Coordinate at 4.
84 Erie’s Motion for Reconsideration and Clarification at 1.
85 Pa.R.A.P. 302(a).
86 Pa.R.A.P. 1925(b)(4)(vii).
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Chief Justice Todd and Justices Donohue, Dougherty and Mundy join this opinion.
Justice Brobson did not participate in the consideration or decision of this matter.
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Document Info

Docket Number： 23 WAP 2022

Judges： Justice David Wecht

Filed Date： 12/8/2023

Precedential Status： Precedential

Modified Date： 12/8/2023