Wallace, S. v. Community Education Centers ( 2017 )

J. A10040/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
SUSANNE WALLACE, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
JANENE WALLACE, DEC. :
:
v. :
:
COMMUNITY EDUCATION :
CENTERS, INC., : No. 2352 EDA 2016
:
Appellant :
Appeal from the Order Entered June 28, 2016,
in the Court of Common Pleas of Delaware County
Civil Division at No. 15-009332
BEFORE: DUBOW, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2017
Community Education Centers, Inc. (“CEC”) appeals from the June 28,
2016 order entered in the Court of Common Pleas of Delaware County that
denied its motion to strike discontinuance of an action filed by appellee
Susanne Wallace, administratrix of the estate of Janene Wallace, deceased
(“Wallace”), against CEC. We affirm.
The trial court set forth the factual history, as gleaned from Wallace’s
complaint, as follows:
Janene Wallace (hereinafter “[Wallace’s] decedent”)
was an inmate at George Hill Correctional Facility.
That correction[al] facility is operated by [CEC].
[Wallace] is the mother of [the] decedent[, Janene
Wallace]. It is alleged that [Wallace’s] decedent
suffered from mental illness which was known or
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should have been known by the correctional officers
at [CEC’s] facility. On May 22, 2015, [Wallace’s]
decedent was seen by a medical care provider, and it
was recommended that she be seen in the
psychiatric unit on the following day. [Wallace’s]
decedent was seen by a psychiatrist and cleared to
return to her unit in general housing. On May 26,
201[5], while in her cell [Wallace’s] decedent
allegedly stated to a correction[al] officer that she
was going to choke herself and covered her cell
window. No one from the correctional facility
visually checked on [Wallace’s decedent] for a period
of approximately fifty (50) minutes thereafter.
During this time, [Wallace’s] decedent hung herself
from a vent in the cell. Although medical staff tried
to resuscitate [Wallace’s] decedent, she was
pronounced dead at the correctional facility. The
post mortem examination of [Wallace’s] decedent
revealed numerous bruises on her legs, chest and
arms.
Trial court opinion, 9/20/16 at 2-3.
The trial court set forth the following procedural history:
[CEC] has appealed from this Court’s Order of
June 28, 2016 denying its Motion to Strike
Discontinuance in this correctional facility liability
action involving the George Hill Correctional Facility
located in Delaware County, Pennsylvania. In its
Motion to Strike Discontinuance, [CEC] requested
this Court to strike the Praecipe to Discontinue
Action Without Prejudice that [Wallace] had filed on
February 9, 2016. That Pra[eci]pe was filed to
discontinue this action after [Wallace] had filed a
Complaint in the Court of Common Pleas of
Philadelphia County. In this action, [Wallace] named
only [CEC] as a defendant. In the Philadelphia
County action, [Wallace] named [CEC] and one of its
correctional officers as defendants.
On October 23, 2015, [Wallace] instituted this
action by filing a Pra[eci]pe for Writ of Summons.
[Wallace] then undertook pre-complaint discovery by
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serving a Request for Production [of] Documents and
Interrogatories. On November 13, 2015, [CEC] filed
a Praecipe for Rule to File Complaint. On February 1,
2016, [Wallace] filed a Complaint in the Court of
Common Pleas of Philadelphia County against [CEC]
and Chamara Prince [(“Defendant Prince”)], a
correctional officer employed by [CEC] at the facility
where the incidents giving rise to [Wallace’s] cause
of action are alleged to have occurred. Defendant
Prince is a Philadelphia County resident and her
identity was first made known to [Wallace] in [CEC’s]
responses to [Wallace’s] pre-complaint discovery in
this action. On February 9, 2016, [Wallace] filed a
Praecipe to Discontinue Action Without Prejudice
pursuant to Pa. R.C.P 229 to discontinue the action
filed in this Court.
On February 19, 2016, [CEC and Defendant
Prince] in the Philadelphia County action filed a
Notice of Removal in order to move that action to
federal court. On February 23, 2016, The Honorable
Wendy Beetlestone of the United States District
Court for the Eastern District of Pennsylvania entered
an Order to Show Cause, requiring [CEC and
Defendant Prince] to show cause why the case
should not be remanded for lack of subject matter
jurisdiction. Thereafter, on March 1, 2016, [CEC and
Defendant Prince] filed a Motion to Withdraw Notice
of Removal and Remand Case to State Court. That
Motion was granted and [Wallace’s] cause of action
remains pending in [the] Court of Common Pleas of
Philadelphia County.
On May 4, 2016, [CEC] filed its Motion to
Strike Discontinuance with a supporting
memorandum of law. On May 24, 2016, [Wallace]
filed a response with a supporting memorandum of
law. On June 28, 2016, this Court entered an Order
denying [CEC’s] Motion and the instant appeal
ensued.
Id. at 1-2.
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The record further reflects that CEC filed a timely notice of appeal to
this court. Thereafter, CEC complied with the trial court’s order to file a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
1. Did the trial court err in failing to apply binding
precedent in denying [CEC’s] Motion to Strike
Discontinuance?
2. Did the trial court err when it misapplied the
case law by relying upon cases that did not
have the appropriate facts to apply the rule of
law set forth in Brown v. T.W. Phillips Gas &
Oil Co., 74 A.2d 105, 108 ([Pa.] 1950)?
3. Did the trial court err when it attempted to
distinguish the facts of Brown[], 74 A.2d [at]
108 [] and Pohl v. NGK Metals Corp., 936
A.2d 43 (Pa.Super. 2007) to the instant case
where the elements in Brown and the intent of
Pohl to prevent “forum shopping” were met
under the facts of the instant case?
Appellant’s brief at 4 (parallel citations omitted).
Rule 229 provides, in relevant part, as follows:
Rule 229. Discontinuance
(a) A discontinuance shall be the exclusive method
of voluntary termination of an action, in whole
or in part, by the plaintiff before
commencement of the trial.
....
(c) The court, upon petition and after notice, may
strike off a discontinuance in order to protect
the rights of any party from unreasonable
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inconvenience, vexation, harassment, expense,
or prejudice.
Pa.R.C.P. 229(a), (c).
A discontinuance in strict law must be by leave of
court, but it is the universal practice in Pennsylvania
to assume such leave in the first instance. However,
the discontinuance is subject to be stricken for cause
shown:
The causes which will move the court to
withdraw its assumed leave and set aside
the discontinuance are addressed to its
discretion, and usually involve some
unjust disadvantage to the defendant or
some other interested party[.]
A discontinuance that is prejudicial to the rights of
others should not be permitted to stand even if it
was originally entered with the expressed consent of
the court.
In determining whether to strike a discontinuance,
the trial court must consider all facts and weigh
equities. Further, the trial court must consider the
benefits or injuries which may result to the
respective sides if a discontinuance is granted. In
Foti [v. Askinas, 639 A.2d 807 (Pa.Super. 1994)],
the case had been pending for approximately five
years at the time of the discontinuance. Depositions
had been taken, interrogatories exchanged and
several motions ruled on by the court. This Court
ultimately held that the trial court had abused its
discretion in granting the discontinuance where
appellants, who endured the burden of litigating the
initial suit for almost five years, may again be
subjected to the same litigation.
Additionally, discontinuances may be improper where
there is a dispositive motion pending. In Nichols [v.
Horn, 525 A.2d 1242 (Pa.Super. 1987)], this Court
concluded the trial court abused its discretion by
refusing to strike a discontinuance where a motion
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for summary judgment was pending. This Court
explained:
We think prejudice has been shown
where, as here, a motion for summary
judgment has been filed and the party
seeking to strike the discontinuance
would be entitled to summary judgment
if the discontinuance was not allowed.
Under these circumstances, the court
abused its discretion in refusing to find
prejudice.
Our courts have also held that discontinuances are
improper where it is apparent that the purpose of
plaintiffs’ discontinuance is to “forum shop.” In
Brown [v. T.W. Phillips Gas & Oil Co., 74 A.2d
105 (Pa. 1950)], the plaintiffs sought to discontinue
their case in an effort to pursue a similar action that
had begun in federal court. The Court explained,
“[O]nce the jurisdiction of a competent court has
attached, discontinuance of the action ought not to
be permitted over objection of the adversary if the
only reason for discontinuing is the plaintiff’s desire
to institute action for the same cause in another
forum.” Id. at 108.[]
Pohl v. NGK Metals Corp., 936 A.2d 43, 46-47 (Pa.Super. 2007)
(numerous internal citations and quotation marks omitted).
Of course, “[t]he decision to grant a discontinuance without prejudice
rests within the discretion of the trial court, and the ruling will not be
reversed absent an abuse of discretion.” Marra v. Smithkline Beecham
Corp., 789 A.2d 704, 706 (Pa.Super. 2001) (citations omitted). A party
challenging a trial court’s exercise of discretion bears a “heavy burden.” Id.
(citation omitted).
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It is not sufficient to persuade the appellate court
that it might have reached a different conclusion
under the same factual situation. An abuse of
discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the
record, discretion is abused.
Id. (citation omitted).
Here, although CEC sets forth three issues in its brief, a reading of that
brief reveals that the gravamen of CEC’s complaints is that the trial court
abused its discretion in denying its motion to strike discontinuance because
Wallace’s sole reason for discontinuing the Delaware County action was to
forum shop, which Brown prohibits. As such, CEC faults the trial court for
considering all facts and weighing equities when it denied CEC’s motion to
strike discontinuance because, according to CEC, its motion should have
been granted without consideration of all facts and without weighing equities
because Wallace, “despite willingly filing this case in Delaware County and
conducting discovery here, has now discontinued this case and re-filed an
identical case in Philadelphia County for no purpose other than to forum
shop.” (CEC’s brief at 19.)
Contrary to CEC’s contention, the record reflects that Wallace initiated
an action against CEC in Delaware County by filing a praecipe for writ of
summons. In her memorandum of law in support of her opposition to CEC’s
motion to strike, Wallace averred that she initiated the action in Delaware
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County because Pa.R.Civ.P. 1006(a.1) requires that a medical professional
liability action must be brought in the county in which the cause of action
arose. See Pa.R.Civ.P. 1006(a.1) (requiring that “a medical professional
liability action may be brought against a health care provider for a medical
professional liability claim only in a county in which the cause of action
arose”). Therefore, because Wallace believed that she may have had a
medical professional liability claim against CEC, she filed her praecipe for
writ of summons in Delaware County because the rules of civil procedure
required her to do so, as Delaware County is the county in which the cause
of action arose. (Wallace’s Memorandum of Law in Support of [Wallace’s]
Response in Opposition to [CEC’s] Motion to Strike Discontinuance, 5/24/16
at 12.)
The record further reflects that prior to initiating the action, Wallace’s
counsel sent a letter to CEC regarding CEC’s duty to preserve evidence. (Id.
at Exhibit A.) In that letter, Wallace also requested the opportunity to view
“videos or photographs of the incident and events prior to Wallace’s
[decedent’s] death.” (Id.) In response, CEC’s insurance carrier advised
Wallace’s counsel that “it is [CEC’s] policy not to make materials or
documents available for review without being legally compelled to do so.”
(Id. at Exhibit B.) As such, Wallace filed her praecipe for writ of summons,
followed by limited pre-complaint discovery requests. (Id. at Exhibits C
& D.) In CEC’s answers to those discovery requests, Wallace learned of
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Defendant Prince’s existence, as well as Defendant Prince’s potential role in
Wallace’s decedent’s death. Wallace also learned that her claims against
CEC sounded in negligence, as opposed to professional medical liability.
Therefore, Wallace praeciped to discontinue her Delaware County action, an
action in which she never filed a complaint. She then instituted an action
sounding in negligence against CEC and Defendant Prince by filing a
complaint in Philadelphia County, where CEC does business and where
Defendant Prince resides. As such, the record belies CEC’s bald assertion
that Wallace “re-filed an identical case in Philadelphia for no purpose other
than to forum shop.” (CEC’s brief at 19.)
Moreover, in its thoughtful opinion, the trial court, as required,
considered all facts and weighed equities when it concluded that the
discontinuance did not expose CEC to any “unreasonable inconvenience,
vexation, harassment, expense[,] or prejudice” and denied CEC’s motion to
strike. (Trial court opinion, 9/20/16 at 10.) See Pa.R.Civ.P. 229(c) (“[a]
court, upon petition and after notice, may strike off a discontinuance in order
to protect the rights of any party from unreasonable inconvenience,
vexation, harassment, expense, or prejudice.”). Indeed, CEC advances no
claim that its motion to strike discontinuance should have been granted
because such relief was necessary to protect CEC’s rights. Rather, CEC
asserts, without one scintilla of record support, that its motion to strike
should have been granted because Wallace’s only purpose for discontinuing
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was to forum shop and, consequently, based on the following language from
Brown the trial court was compelled to grant its motion to strike:
[O]nce the jurisdiction of a competent court has
attached, discontinuance of the action ought not be
permitted over objection of the adversary if the only
reason for discontinuing is the plaintiff’s desire to
institute an action for the same cause in another
forum.
Appellant’s brief at 9, 14, 15, 20, citing Brown, 74 A.2d at 108. The record,
however, belies CEC’s claim. Consequently, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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